                                                       Electronically Filed
                                                       Supreme Court
                                                       SCEC-XX-XXXXXXX
                                                       09-JAN-2019
                                                       02:39 PM


                          SCEC-XX-XXXXXXX

           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI


                 MATTHEW S. LOPRESTI, Plaintiff,

                                vs.

   STATE OF HAWAIʻI; SCOTT T. NAGO, as Chief Election Officer
       for the State of Hawaiʻi; and OFFICE OF ELECTIONS,
                  State of Hawaiʻi, Defendants.


                        ORIGINAL PROCEEDING

    AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

          We have considered (1) the election complaint, filed by

plaintiff Matthew S. LoPresti (“LoPresti”) on November 26, 2018,

(2) the statement by Sherrie J. Course (“Course”), filed by

LoPresti on November 29, 2018, (3) the motion to dismiss

complaint or, in the alternative, motion for summary judgment,

filed by defendants State of Hawaiʻi, Chief Election Officer

Scott Nago (“Chief Election Officer Nago”), and the Office of

Elections (collectively, “the State Defendants”) on December 6,

2018, (4) the State Defendants’ response to the court’s December

28, 2018 order, filed on December 31, 2018, (5) LoPresti’s reply

to the State Defendants’ response, filed on January 4, 2019,
(6) the respective supporting documents, and (7) the record in

this matter.   Having heard this matter without oral argument and

in accordance with HRS § 11-174.5(b) (2009) (requiring the

supreme court to “give judgment, stating all findings of fact and

of law”), we set forth the following findings of fact and

conclusions of law and enter the following judgment.

                           FINDINGS OF FACT

               The November 6, 2018 General Election

          1.    LoPresti was the Democratic Party candidate for

the Office of State Senate, District 19 in the November 6, 2018

general election.

          2.    State Senate, District 19 consists of district/

precincts 40-02, 40-03, 40-04, 41-01, 41-02, 41-03, and 41-05.

          3.    Each district/precinct has its own unique ballot

type containing the contests and questions that the voters in

those district/precincts are eligible to vote on, based on where

they live.

          4.    The election results for the race for State

Senate, District 19 was as follows:
          (R) FEVELLA, Kurt                   6,205   (48.0%)
          (D) LOPRESTI, Matthew S. (Matt)     6,089   (47.1%)
                Blank Votes                     623   ( 4.8%)
                Over Votes                        7   ( 0.1%)

          5.    Kurt Fevella (“Fevella”) received the highest

number of votes.

          6.    The difference in the votes between LoPresti and

Fevella was 116 votes.

                                    2
                           The Election Contest

            7.    On November 26, 2018, LoPresti timely filed a

complaint1 challenging the election results for Office of State

Senate, District 19.

            8.    LoPresti alleges that irregularities in voting or

in counting of votes could have caused a difference in the

election outcome or could have precluded the correct result from

being ascertained.      LoPresti also alleges that the 116-vote

difference in the election equaled 0.9% of the total votes cast

and, therefore, calls into doubt the election results.             LoPresti

further alleges that irregularities at district/precinct 41-02,

including potential tampering of the ballots, may have affected

the election results.

            9.    LoPresti contends that the electronic tabulation

machines were not working from the start on election day at

district/precinct 41-02 (and possibly at some of the other six

polling precincts in the district), that voters were told to take

the ballots away from the machine and deposit them in another box

that was not locked and secured, that precinct officials had

access to the box of ballots throughout the day, that a precinct

official (Michele Golojuch (“Golojuch”)) who was openly hostile

to his candidacy was present at district/precinct 41-02, and that

ballots that needed to be tabulated by machine were


      1
         LoPresti’s complaint was in the form of a 7-page letter addressed to
this court.

                                      3
“intentionally and deliberately physically altered and

manipulated by poll workers.”    LoPresti maintains that these

irregularities invited voter tampering and may have influenced

some voters to vote against him.       LoPresti also maintains that

the precinct captain for district/precinct 41-02 did not closely

oversee the process and “admitted to [him] that if she were in

[his] shoes she would certainly ask for a recount of the

votes[.]”

            10.   LoPresti also contends that HRS § 11-172 is

unconstitutional.

            11.   LoPresti acknowledges that he was not present at

any of the precincts on the day of the general election and that

the concerns he raises in the complaint arise from conversations

with the precinct captain or chair, Office of Election officials,

and a voter who voted at district/precinct 41-02.

            12.   LoPresti seeks the following relief:

     •      an order requiring a hand recount and entering judgment
            invalidating the election results for the Office of
            State Senate, District 19 on the ground that a correct
            result cannot be ascertained because of a mistake or
            fraud on the part of the precinct officials;

     •      if the recount shows that LoPresti received the highest
            number of votes, then judgment be entered electing him
            the winner;

     •      an order compelling witnesses and taking the necessary
            steps to fully determine what occurred on the general
            election day at the polling precincts in the State
            Senate District 19 race; and

     •      an order requiring the State Defendants to disclose the
            margin of error for their voting and tabulating
            systems.

                                   4
                    Statement of Sherrie J. Course

          13.   On November 29, 2018, LoPresti submitted a

statement that purports to be from Course, who was a voter at

district/precinct 41-02.

          14.   According to the statement, Course was the first

voter to attempt to scan her ballot at district/precinct 41-02 on

the day of the general election.       Course states that the scanner

did not work and after several attempts to scan her ballot, the

precinct worker “removed a piece of equipment from the left side

of the ballot box underneath the scanner” to insert the ballots

through the slot.    Course states that, “[h]aving seen inside the

box, [she] could tell that this slot was in the correct spot to

allow the ballots to drop into the receptacle below, so [she]

went ahead and slipped [her] paper ballot through the slot[.]”

When Course re-entered the polling place to get a slip of paper

to take back to work, she noticed additional voters waiting to

drop their ballots through the slot into the ballot box.      Course

states that she wondered whether the ballots in the bin would be

properly counted.    After learning that LoPresti lost the election

for Senate District 19, Course contacted her friend who voted at

the same precinct at approximately 8:00 a.m. or 8:30 a.m. and

learned that the scanner had not been fixed.      Course states that

with her consent, her friend provided her telephone number to

LoPresti, who contacted her to see if she would be willing to

provide a statement regarding her experiences.

                                   5
            The Motion to Dismiss or, in the Alternative,
                     Motion for Summary Judgment

            15.   On December 6, 2018, the State Defendants moved to

dismiss the complaint or, in the alternative, for summary

judgment.    They contend that the complaint fails to state a claim

for relief because LoPresti fails to present any evidence of

“errors, mistakes or irregularities,” or any other such basis,

such as “provable fraud, overages, or underages, that could cause

a difference in the election results” as mandated by HRS § 11-

172.   In addition, they contend that the remedies requested by

LoPresti are improper and cannot be awarded by this court in a

general election contest.

            16.   The State Defendants argue that LoPresti’s

allegations of possible election fraud and voter tampering are

conclusory and speculative as LoPresti does not present actual

information of mistakes or errors that would have resulted in a

change of 59 votes in his favor.       They contend that LoPresti’s

suspicion of ballot tampering at district/precinct 41-02 or other

precincts are insufficient to warrant relief.       The State

Defendants explain that there is a system in place in the event

there is an equipment failure in the handling and processing of

cast ballots on election day and that the procedures were

followed during the period of time the eScan machine did not work

properly at district/precinct 41-02 –- during that time, voters

cast their ballots in the secured Emergency Ballot bin or on the


                                   6
direct recording voting machine and when the eScan machine was

replaced, the voters continued using the scanner.   The State

Defendants further explain that at the end of the night, the

Emergency Ballot bin was opened and the ballots that were placed

inside were removed and scanned; those ballots that were folded

in the ballot box were flattened by the workers for scanning.

          17.   The State Defendants also argue that LoPresti

fails to prove that HRS § 11-172 is invalid and unconstitutional

beyond a reasonable doubt.

          18.   Attached to the motion to dismiss or, in the

alternative, for summary judgment, are declarations from Chief

Election Officer Nago, Joann Anoc (“Anoc”), the precinct chair

for district/precinct 41-02 at Ilima Intermediate School for the

2018 elections, and Rich Geppert (“Geppert”), one of the

professional services managers for Hart Intercivic, Inc.

(“Hart”), the vendor of the electronic voting machines used in

the 2018 elections.

          19.   In his declaration, Geppert states that the voting

system used in the 2018 election has been used by the Office of

Elections since 2008.   Geppert explains that the Hart voting

system is comprised of three main components to record votes --

(1) eSlate - “a direct recording electronic voting unit that

provides accessible voting to individuals with disabilities” and

“includes a verifiable ballot option, whereby a paper record of

each vote cast is printed and retained by the device[;]” (2)

                                 7
eScan - “a digital ballot imaging precinct counter, in which a

voter inserts his or her ballot to be counted and deposited into

the precinct counter[;]” and (3) Ballot Now - “utilizes high-

speed scanners to scan absentee ballots to be counted.”      In

calculating ballots, Ballot Now uses commercial full-sheet

scanning technology to record a full digital image of the voted

ballot.    Typical resolution of the full-sheet scan is 200 dots

per inch (dpi), which provides a high-quality digital image of

the voted ballot that is saved on the Ballot Now system and is

used for all subsequent election activities.    The software counts

the number of pixels inside each option box in the digital image.

According to Geppert, the Ballot Now digital scanning system “has

been validated in multiple studies of real election data[,]” “has

been certified for use both federally and at the state level in

numerous states[,]” and “has been used in hundreds, if not

thousands, of elections and has accurately processed millions of

votes.”

            20.   In his declaration, Chief Election Officer Nago

explains that ballots are strictly controlled through a detailed

process that involves securing the ballots at the polling place

as well as when the ballots are transported from the polling

place.    The ballots are secured in ballot transportation

containers with uniquely numbered wire hasp seals and the use of

Ballot/Seal Control Forms to track the ballots from the packing

through the distribution and collection, along with the

                                   8
requirement that ballots are handled in the presence of not less

than two officials assigned in accordance with HRS §§ 11-71, 11-

72, or 16-45.

           21.   Chief Election Officer Nago explains that the

voting system that was used during the 2018 general election was

“inspected and tested by official observers in preparation for

use for the general election at absentee walk sites, polling

places, and absentee mail voting.”    Chief Election Officer Nago

notes that these official observers were present at the State

Capitol to observe the counting of ballots.

           22.   Chief Election Officer Nago explains that a series

of result reports are issued on election night after the polls

close as supplies and equipment are transferred to the counting

center.   There are 4 scheduled releases of result reports

targeted to be released (1) upon the close of polls, (2) at 8:30

p.m., (3) at 10:00 p.m., and (4) at 11:30 p.m. followed by an

election night final report to be released once all ballots have

been counted.    Chief Election Officer Nago states that on the

night of the general election, the manual audit team, pursuant to

HAR § 3-172-102(a), audited the computer-generated results

related to ballots voted at the polls in a different precinct, so

as to ensure the accuracy and integrity of the voting and vote

counting system; the official observers did not request an

expanded audit and Chief Election Officer Nago did not see any


                                  9
basis to question the accuracy and integrity of the voting and

vote counting system.

          23.   Chief Election Officer Nago states that post-

election audits showed no errors in the counting of votes by the

voting and vote counting system.      He states that the distribution

of overages and underages among the district/precincts associated

with State Senate, District 19 (e.g., 40-02, 40-03, 40-04, 41-01,

41-02, 41-03, and 41-05) “shows no pattern of fraud or mistake

from which it could be concluded that the correct result of the

election had not been ascertained.”     Chief Election Officer Nago

states that there is no evidence that the vote counting system

“has misreported or produced inaccurate results and that

[LoPresti] would prevail if the ballots were counted again” and

that he is “not aware of any issues or problems with the accuracy

of the vote counting system, the handling of ballots, or any

other matters that would impact the integrity of the general

election results of State Senate, District 19.”

          24.   Anoc was the precinct chair for district/precinct

41-02 for the 2018 general election and previously served as

precinct chair for the 2018 primary election, the 2006, 2008, and

2016 primary and general elections, the 2010 general election,

and the 2012 primary election.   Anoc indicated that for the 2018

election cycle, she attended a precinct chair training and was

provided a detailed manual.


                                 10
            25.   According to Anoc’s declaration, on the day of the

general election, prior to the opening of the polls, her precinct

performed the open polls procedure, but the eScan equipment was

not able to scan the ballot of the first voter and, therefore,

that ballot had to be deposited in the Emergency Ballot Bin.2

Anoc called the control center and reported the problem and,

after trying to resolve the problem over the phone, a

troubleshooter was dispatched to the polling place.

            26.   Anoc stated that in the interim, while waiting for

a troubleshooter, voters were informed that they could wait for

the eScan to be repaired, vote on the eSlate (e.g., the direct

recording electronic voting machine), or deposit their ballot in

the Emergency Ballot Bin.       When the Emergency Ballot Bin reached

capacity, the eScan ballot box seal was cut and the ballot box

unlocked with a precinct official; the Emergency Ballot Bin was

then removed carefully to ensure that no ballot fell out.             Anoc

prepared a transport container and transferred the ballots from

the Emergency Ballot Bin and packed them into the container.

Anoc explained that she placed the transport container with the

unscanned ballots into the bottom of the eScan ballot box to be

scanned at the end of the night and returned the Emergency Ballot

Bin into the ballot box, locked the ballot box door, and secured

      2
         The Emergency Ballot Bin is a separate bin in the ballot box and
voted ballots can only be deposited through the designated slot. The slot is
secured and if the eScan is inoperable, the voters may deposit their ballot in
the Emergency Ballot bin.

                                     11
the ballot box with a pull tight seal.   According to Anoc, the

eScan equipment was replaced at approximately 9:20 a.m.

          27.    Anoc stated that at the end of the day, after the

last voter had voted at her precinct, close polls procedures were

performed.   The eScan ballot box seal was cut, the ballot box was

unlocked, and the ballots were carefully removed to ensure that

no ballot fell out.    Precinct officials scanned the ballots from

the Emergency Ballot Bin and the ballots that had been removed

from the Emergency Ballot Bin and packed in the transport

container when the eScan equipment was inoperable.   For those

ballots that were folded, the precinct officials unfolded the

ballot to smooth it out before it was scanned.

          28.    The precinct officials then performed the close

polls procedures on the eScan unit.   The precinct officials

removed the scanned ballots from the ballot box and packed them

into voted ballot containers, which were sealed with a wire

hasped seal.    The seal numbers were recorded on the Ballot Seal

Control Form and the voted ballot containers and various election

supplies were picked up by the Delivery Collection Team to

transport back to the counting center at the State Capitol.

          29.    Anoc explained that she was responsible for ten

other precinct officials, including Golojuch, who was a voter

assistance official.   Anoc did not observe any inappropriate

conduct by Golojuch or any other precinct official at any time.


                                 12
Anoc explained that, after the election, she was contacted by the

Office of Elections due to an inquiry by LoPresti and agreed to

speak with him.    Anoc stated that she explained to LoPresti

everything that had occurred in the precinct on election day but

never expressed that any inappropriate conduct occurred or that

any precinct official altered the contents of any ballot before

it was scanned.    Anoc further stated that at no time did she

advise LoPresti to ask for a recount; rather, she told him “it

was up to him.”    Anoc contended that she was not aware of any

issues or problems associated with district/precinct 41-02 that

would have impacted the security of the ballots.

                     The December 28, 2018 Order

          30.     On December 28, 2018, this court issued an order

directing the State Defendants to provide the following

information:
                1.    Information setting forth the margin of
          error for the electronic vote counting machines, when
          applying the tabulation procedures established by or
          in accordance to chapter 3-172 of the Hawaii
          Administrative Rules, that were used in the November
          6, 2018 general election.

                 2.   Information setting forth how the intent
          of the voter is ensured in a close election without a
          hand count, such as when a ballot contains marginal
          marks.

    The State Defendants’ Response to December 28, 2018 Order

          31.     On December 31, 2018, the State Defendants filed a

response to the court’s December 28, 2018 order.

          32.     The State Defendants’ response includes a


                                   13
declaration from Chief Election Officer Nago and a declaration

from David Magedson (“Magedson”), a program manager for Hart.

          33.   In his declaration, Chief Election Officer Nago

states that, consistent with the Help America Vote Act of 2002,

the State of Hawaiʻi’s election statutes and administrative rules

“provide for a uniform standard as to what constitutes a vote and

what will be counted as a vote.”     He explains that the

legislature authorized the Chief Election Officer to adopt a

voting and vote counting system and to define what constitutes a

proper mark for voting purposes of using the system, as has been

done by administrative rules.   He then describes a proper voting

mark, a marginal voting mark, and an improper voting mark.

          34.   Chief Election Officer Nago states that on the

night of the general election, the manual audit team audited the

computer-generated results related to ballots voted at the polls.

He explained that the audit is a hand count of the voted ballots

which involved reviewing the physical ballots from the polling

places associated with the selected district/precincts and

confirming that the manual audit results for a selected contest

on the ballot matched the computer-generated results for the

selected contest.   If discrepancies are found in the audit, the

Chief Election Officer may authorize an expanded audit to

determine the extent of misreporting within the system.     For the

2018 general election, the manual audit team did not request an


                                14
expanded audit and Chief Election Officer Nago stated that he

similarly saw no basis to question the accuracy and integrity of

the voting and vote counting system.

          35.   Chief Election Officer Nago also states that

official observers audited the computer-generated results related

to absentee mail ballots.   If discrepancies were found, the Chief

Election Officer may authorize an expanded audit to determine the

extent of misreporting within the system.   For the 2018 general

election, the official observers did not request an expanded

audit, and Chief Election Officer Nago stated that he similarly

saw no basis to question the accuracy and integrity of the voting

and vote counting system.

          36.   Chief Election Officer Nago also explains that,

going into the election, the State adopted a voting and vote

counting system and, with that, a fixed objective standard as to

how ballots would be counted based on a properly functioning

voting and vote counting system that would be subject to

inspection, audit, and testing by qualified observers before and

after an election.   He states that “[a]s we cannot change the

rules after an election, any audit of results is focused on

confirming how a properly functioning voting and vote counting

system would count ballots.”   Thus, Chief Election Officer

contends that objective evidence that the system was not

operating properly would need to be presented, in order to


                                15
require additional auditing to occur.   He states that “[u]nder no

circumstances, is a different set of rules or a different

standard used after an election to count ballots that were

originally intended to be counted with a particular voting and

vote counting system.   At all times, one strives to replicate the

counting by the original voting system.”

          37.   Chief Election Officer Nago also explains his

understanding of the technical nature of the voting system’s

handling of marginal marks and the concept of error.

          38.   Chief Election Officer Nago states that the

machines are tested, voters are instructed in the manner in which

to properly mark their ballots, and there are audits.   As such,

Chief Election Officer has no reason to believe there is a

“margin of error” as it relates to marks made in the uniform

manner established by the Office of Elections.   He notes that any

references to “margin of error” may be a mistaken reference to

the “error rate” that is used as part of the certification of the

voting system under federal standards and relates to the initial

testing of the machines.   In this context, “error rate” does not

involve errors “attributable to an act of the voter” but instead

relates to an error occurring despite all ballots being properly

marked.   Under Voting Systems Standards, “the system shall

achieve a target error rate of no more than one in 10,000,000

ballot positions, with a maximum acceptable error rate in the


                                16
test process of one in 500,000 ballot positions.”   According to

Chief Election Officer Nago, the federal standards state that

“[t]his rate is set at a sufficiently stringent level such that

the likelihood of voting system errors affecting the outcome of

an election is exceptionally remote even in the closest of

elections.”   He explains that based on the tests and audits of

the system, he has no reason to believe that any error rate

occurred with this election.

          39.   Chief Election Officer Nago states that the term

“margin of error” may be a misnomer to describe the possible

consequence of voters who make “marginal marks” that are close to

the threshold that the voting system would record as a vote.     He

explains that “marginal marks” are not “proper marks” and are

made contrary to the instructions on the ballot and, therefore,

he does not consider them to constitute a “margin of error.”

          40.   In his declaration, Magedson explains that the

Hart voting system is comprised of three main components to

record votes -- (1) eSlate; (2) eScan; and (3) Ballot Now.    He

explains how Ballot Now scans images (e.g., pixel of darkness

analysis by the system), how the system operates in regard to

marginal marks, the Ballot Now Overvote Reduction Algorithm to

eliminate false overvotes caused by pen rests, dirt, or other

small marks on the ballot, how votes are counted, and the

instructions to the voters that appear on the ballot, and


                                17
attaches a copy of a document explaining the manner in which

Ballot Now records votes.
                9.    As indicated in the document, if more than
          4.2% of the pixels are marked, the option box will be
          recorded as having been marked. Additionally, when an
          option box is marked so that the number of counted
          pixels is extremely close to our threshold(+/- 7
          pixels), it is possible for an option box to be read
          as marked in one scan, but read as unmarked in a
          second scan (or vice-versa). Studies of past election
          data have shown that only around .046% of option boxes
          fall into the pixel range where variance can occur. .
          . .

          41.   Magedeson states that, as he understands the term

“margin of error,” there is “no ‘margin of error[]’ for properly

marked ballots” but notes that the election industry is a highly

technical industry and uses the term “error rate” in its

certification of systems.     Magedson also explains that the Ballot

Now system has been validated in multiple studies of real

election data and has been certified for use both federally and

at the state level in numerous states in compliance with 52

U.S.C. § 21081(a)(5) (which addresses error rate standards of the

voting system) and Section 3.2.1 of the 2002 Voting System

Standards (entitled “Accuracy Requirements”) and that the system

is tested by official observers prior to the election and that

there is an auditing process that, in the absence of any

discovery that there was a problem, “there is no basis to believe

there was an error with the machines.”




                                   18
       LoPresti’s Reply to the State Defendants’ Response

            42.   On January 4, 2019, LoPresti filed a reply to the

State Defendants’ response to the December 28, 2018 order.

            43.   LoPresti contends that the current law, its

enforcement, and/or its interpretation is unconstitutional based

on the “unattainable” standard required to obtain a recount.

LoPresti maintains that the ability to successfully challenge

close or questionable election results is a necessary condition

for voters to realize the right to a free and fair election,

which must include “the opportunity for recounting ballots and/or

. . . investigations into potential wrongdoing.”

                          CONCLUSIONS OF LAW

            1.    An election contest is instituted by filing a

complaint in the supreme court “set[ting] forth any cause or

causes, such as but not limited to, provable fraud, overages, or

underages, that could cause a difference in the election

results.”    HRS § 11-172.

            2.    A complaint challenging the results of a general

election pursuant to HRS § 11-172 fails to state a claim unless

the plaintiff[] demonstrate[s] errors, mistakes or irregularities

that could change the outcome of the election.     See Tataii v.

Cronin, 119 Hawaiʻi 337, 339, 198 P.3d 124, 126 (2008) (citing

Akaka v. Yoshina, 84 Hawaiʻi 383, 387, 935 P.2d 98, 102 (1997)).

See also Funakoshi v. King, 65 Haw. 312, 317, 651 P.2d 912, 915


                                  19
(1982) (“‘Difference in the election results’ . . . mean[s] a

difference sufficient to overturn the nomination of any

particular candidate[.]”).

          3.     In order for a complaint to be legally sufficient,

the complaint must “show[] that the specific acts and conduct . .

. complained of would have had the effect of changing the results

of the primary election.”    Elkins v. Ariyoshi, 56 Hawaiʻi 47, 49,

527 P.2d 236, 237 (1974); Akaka, 84 Hawaiʻi at 388, 935 P.2d at

103 (in order for an election challenge to have merit, “the

petitioner must ‘show that he [or she] ha[s] actual information

of mistakes or errors sufficient to change the result[;]’” an

election contest cannot be based upon mere belief or indefinite

information).    It is not sufficient that a plaintiff point to a

“poorly run and inadequately supervised election process” that

evinces “‘room for abuse’” or “‘possibilities of fraud.’”

Elkins, 56 Haw. at 48, 527 P.2d at 237.

          4.    “In the absence of facts showing that

irregularities exceed the reported margin between the candidates,

the complaint is legally insufficient because, even if its truth

were assumed, the result of the election would not be affected.”

Tataii, 119 Hawaiʻi at 339-40, 198 P.3d at 126-27.

          5.     “An election contest cannot be based upon mere

belief or indefinite information.”    Id.




                                 20
            6.    When reviewing a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted, the

court must accept the plaintiff’s allegations as true and view

them in the light most favorable to him or her; dismissal is

proper only if it appears beyond doubt that the plaintiff can

prove no set of facts in support of his or her claim that would

entitle him or her to relief.     AFL Hotel & Restaurant Workers

Health & Welfare Trust Fund v. Bosque, 110 Hawaiʻi 318, 321, 132

P.3d 1229, 1232 (2006).

            7.    Conclusory allegations and unwarranted inferences

are not sufficient to defeat a motion to dismiss.     Kealoha v.

Machado, 131 Hawaiʻi 62, 74, 315 P.3d 213, 225 (2013).

            8.    The court’s consideration of matters outside the

pleadings converts a motion to dismiss into one for summary

judgment.    Buscher v. Boning, 114 Hawaiʻi 202, 212, 159 P.3d 814,

824 (2007).

            9.    Summary judgment is appropriate where there is no

genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.     Silva v. City and

County of Honolulu, 115 Hawaiʻi 1, 6, 165 P.2d 247, 252 (2007).

            10.   LoPresti does not provide “specific facts” or

“actual information” of mistakes, errors, irregularities, error

rates, or variances that could change the result of the general

election or the reported differential in votes between himself


                                  21
and Fevella.    LoPresti’s unsubstantiated contention that the

temporary inability of the eScan equipment to scan ballots and

the subsequent deposit of ballots in the Emergency Ballot Bin

while the eScan equipment was replaced “possibl[y]” invited vote

tampering does not demonstrate actual fraud or mistakes by

precinct officials that could change the reported difference in

the votes between LoPresti and Fevella.    Both Nago and Anoc

detailed the procedures in place when a voting machine

malfunctions and the procedures that were followed at

district/precinct 41-02 when the eScan machine needed to be

replaced in the early hours of the commencement of the general

election and in scanning those ballots that were placed in the

Emergency Ballot during that time.    Neither Nago nor Anoc

concluded that the process that was followed negatively impacted

the security of the ballots or altered the election result.

LoPresti has not presented specific evidence to dispute this

conclusion such that it would change the election result.

          11.    In addition, LoPresti’s contention that a recount

must be done for all “close” races does not prove that HRS § 11-

172 is unconstitutional beyond a reasonable doubt.

          12.    LoPresti has not shown in his submissions to this

court actual information of errors, mistakes, irregularities,

error rates, or variances sufficient to change the outcome of the

election or change the reported margin of votes between himself

and Fevella.

                                 22
                                  JUDGMENT

            Based upon the foregoing findings of fact and

conclusions of law, there is no genuine issue of material fact

and judgment is entered in favor of the State Defendants and

against LoPresti.     Kurt Fevella received the highest number of

the votes cast in the November 6, 2018 general election and has

been elected to the Office of State Senate, District 19 pursuant

to HRS § 11-155 (2009).3

            A copy of this judgment shall be served on Chief

Election Officer Nago who shall act in accordance with the

requirements set forth in HRS § 11-174.5(b) (“If the court shall

decide which candidate or candidates have been elected, a copy of

the judgment shall be served on the chief election officer or

county clerk, who shall sign and deliver to the candidate or

candidates certificates of election, and the same shall be

conclusive of the right of the candidate or candidates to the

offices.”).

            DATED: Honolulu, Hawaiʻi, January 9, 2019.

                                    /s/ Mark E. Recktenwald

                                    /s/ Paula A. Nakayama

                                    /s/ Sabrina S. McKenna

                                    /s/ Richard W. Pollack

                                    /s/ Michael D. Wilson

      3
         HRS § 11-155 provides, in relevant part, that “[t]he number of
candidates to be elected receiving the highest number of votes in any election
district shall be declared to be elected.”

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