De La Cruz v. State: HRS § 12-41(b) “Ten Percent” Uses Candidate Votes Only; Hustace v. Doi Controls Equal-Protection Challenges to Nonpartisan Advancement Rules

1. Introduction

Case: De La Cruz v. State (Supreme Court of Hawaiʻi, Sept. 1, 2026).
Parties: Blessings De La Cruz (plaintiff; nonpartisan candidate) vs. State of Hawaiʻi Office of Elections and Scott T. Nago, Chief Election Officer (defendants).
Posture: Original proceeding election contest challenging the determination that De La Cruz would not advance to the 2026 general election ballot for House District 44.

The dispute arose from Hawaiʻi’s statutory scheme governing which candidates advance from the primary to the general election. De La Cruz, the unsuccessful nonpartisan candidate, sought to invalidate the statutory advancement thresholds for nonpartisan candidates on equal protection grounds and to obtain a judicial determination of who should advance to the general election ballot.

The key issues were: (1) whether the complaint stated a legally sufficient election contest under HRS § 11-172 and the limited remedy of HRS § 11-173.5(b); (2) whether HRS § 12-41(b) violates equal protection by treating nonpartisan candidates differently from partisan candidates; and (3) how to calculate the “ten per cent of the total votes cast” threshold under HRS § 12-41(b), including whether blank and overvotes count.

2. Summary of the Opinion

The Supreme Court entered judgment for the State and against De La Cruz. It held:

  • De La Cruz did not meet either alternative route in HRS § 12-41(b) to advance to the general election: she received 41 votes, which was less than 10% of the total votes cast for candidates (292) and far less than the lowest vote total of a nominated partisan candidate (900).
  • HRS § 12-41(b) does not deny equal protection; the court applied and reaffirmed Hustace v. Doi, which previously rejected materially similar equal-protection attacks on the disparate paths by which partisan and nonpartisan candidates reach the general election.
  • Article II, Section 4 of the Hawaiʻi Constitution (open primary protections and secrecy) does not require election officials or the court to disregard HRS § 12-41(b) and place De La Cruz on the general election ballot.
  • The complaint failed to establish any “error, mistake, or irregularity” that “could cause a difference in the election results” as required by HRS § 11-172, and failed to plead conduct by election officials that could change the results.

The court ordered that Darius K. Kila and Charla (Kahealani) Weaver be placed on the general election ballot for District 44, and that De La Cruz not be placed on the ballot.

3. Analysis

3.1. Precedents Cited

Dicks v. Office of Elections (2024)

Dicks v. Office of Elections, 155 Hawai'i 102, 557 P.3d 831 (2024), supplied the modern pleading/causation requirement for election contests: the complaint must plead, at minimum, that the challenged conduct by an election official “could cause a difference in the election results.” The court used Dicks twice: (1) to frame the statutory sufficiency requirement under HRS § 11-172; and (2) to reject De La Cruz’s attempt to convert a facial constitutional objection to HRS § 12-41(b) into an “irregularity” attributable to election administration.

Dicks also informed the court’s reading of Article II, Section 4: the court reiterated that the constitutional prohibition on requiring voters to declare party preference was designed to move Hawaiʻi from a closed to an open primary, not to equalize the statutory advancement criteria for candidates.

Akaka v. Yoshina (1997)

Akaka v. Yoshina, 84 Hawaiʻi 383, 935 P.2d 98 (1997), provided the burden principle: the contestant must show actual information of errors sufficient to change the result; mere belief is insufficient; and where alleged irregularities do not exceed the margin, the complaint is legally insufficient. Although De La Cruz’s challenge was constitutional rather than arithmetic fraud/error, Akaka reinforced the court’s insistence that election contests remain tethered to result-changing irregularities, not abstract unfairness claims.

Hustace v. Doi (1978)

Hustace v. Doi, 60 Haw. 282, 588 P.2d 915 (1978), was dispositive on equal protection. The court treated Hustace as binding precedent that already upheld HRS § 12-41’s distinct treatment of partisan and nonpartisan candidates.

The Opinion highlights two key Hustace points:

  1. “Cap” on the nonpartisan burden: the minimum showing for nonpartisan advancement can never exceed the lowest vote total of a partisan candidate who advances. This “lowest nominated partisan vote” alternative in HRS § 12-41(b) functions as a built-in limiter on how demanding the nonpartisan threshold can become.
  2. Structural comparability: the “ten percent” concept appears elsewhere for partisan actors as well—specifically, the court notes (as Hustace did) that a similar threshold is required for a party to appear on the primary ballot under HRS § 11-61(b)(2)(A). This supports the conclusion that the statutory system regulates ballot access and primary mechanics in a manner that can be justified by the State’s election-administration interests.

Storer v. Brown (1974)

The Opinion, tracking Hustace, invoked Storer v. Brown, 415 U.S. 724 (1974), for the proposition that states may require nonpartisan (or independent) candidates to demonstrate “substantial public support” as an alternative route to the general election, to protect the integrity and effectiveness of the primary system. Storer supplied constitutional ballast for distinguishing between nomination through party primaries and qualification through nonpartisan thresholds.

Pleading and procedural framework cases: Casumpang, Foytik, Estate of Doe, Winfrey, Pioneer Mill

The court relied on:

  • Casumpang v. ILWU, Local 142, 94 Hawaiʻi 330, 13 P.3d 1235 (2000), for the standard on a motion to dismiss (accept allegations as true; dismissal only if no set of facts would entitle relief).
  • Foytik v. Chandler, 88 Hawaiʻi 307, 966 P.2d 619 (1998), to explain conversion to summary judgment when matters outside the pleadings are considered.
  • Estate of Doe v. Paul Revere Ins. Group, 86 Hawaiʻi 262, 948 P.2d 1103 (1997), for the summary judgment standard (no genuine issue of material fact; entitled as a matter of law).
  • Winfrey v. GGP Ala Moana LLC, 130 Hawaiʻi 262, 308 P.3d 891 (2013), for materiality and viewing evidence in the light most favorable to the nonmoving party.
  • Pioneer Mill Co. v. Dow, 90 Hawaiʻi 289, 978 P.2d 727 (1999) (quoted in Winfrey), to limit permissible inferences and bar speculation.

Collectively, these cases supported the court’s procedural path: because it considered the vote totals (material facts outside the bare pleadings), the court treated the State’s motion under a summary judgment framework and found no genuine issue of material fact.

Jijun Yin v. Aguiar (2020)

Jijun Yin v. Aguiar, 146 Hawaiʻi 254, 463 P.3d 911 (2020), provided the interpretive directive to read a statute as a whole to produce a “sensible and harmonious whole.” The court used this canon to interpret HRS § 12-41(b)’s “ten per cent of the total votes cast” in context with the alternative “lowest nominated partisan vote” pathway, leading to the conclusion that blank and overvotes are not included in the ten-percent calculation.

3.2. Legal Reasoning

(A) Election contests are limited vehicles with result-oriented remedies

The court anchored its analysis in the statutory purpose and limits of an election contest: HRS § 11-172 requires pleading causes that “could cause a difference in the election results,” and HRS § 11-173.5(b) limits relief in a primary contest to deciding “what candidate was nominated or elected.” This framework discourages using an election contest to litigate broad constitutional grievances untethered to election-official error or result-changing irregularities.

(B) Interpreting HRS § 12-41(b): blank and overvotes excluded from “total votes cast”

The Opinion’s notable interpretive move is its conclusion that blank and overvotes are not included in the “ten per cent of the total votes cast for the office” when calculating the nonpartisan threshold. The court reasoned that, when read as a whole, HRS § 12-41(b)’s second alternative—advancement by matching the lowest vote received by a nominated partisan candidate—signals that the relevant “total votes cast” refers to votes cast for candidates (i.e., candidate vote totals), not ballots that include undervotes/blank votes or overvotes.

Applied to the facts: the total votes cast for candidates was 2,929; ten percent was 292. De La Cruz’s 41 votes fell well short.

(C) Equal protection: Hustace v. Doi forecloses the challenge

De La Cruz framed the statutory disparity as unconstitutional “different treatment between partisan and nonpartisan candidates.” The court treated this as an issue already decided in Hustace, and reiterated the State’s recognized interest in an effective direct primary system. Because HRS § 12-41(b) allows a nonpartisan candidate to advance either by (1) reaching 10% or (2) matching the lowest advancing partisan vote total, and because these mechanisms reflect legitimate election-structure goals recognized by Hustace (and supported by Storer), the court concluded there was no equal protection violation under Article I, Section 5 of the Hawaiʻi Constitution or the Fourteenth Amendment.

(D) Article II, Section 4 is about voter choice/secrecy, not candidate advancement parity

The court rejected the attempt to use Article II, Section 4 (open primary and secrecy protections) as “constitutional support” for equalizing advancement rules. Citing Dicks, it emphasized that Article II, Section 4’s purpose was to prevent compelled party declaration and to ensure an open primary system, not to rewrite the legislature’s criteria for which candidates qualify for the general election ballot.

3.3. Impact

  • Reaffirmation of Hustace: The decision reinforces that equal-protection attacks on Hawaiʻi’s different advancement pathways for partisan vs. nonpartisan candidates face steep headwinds in the Supreme Court of Hawaiʻi absent a meaningful doctrinal shift or materially different statutory scheme.
  • Clarification of HRS § 12-41(b) arithmetic: By excluding blank and overvotes from the ten-percent calculation (when harmonized with the statute’s alternative “lowest nominated partisan vote” route), the Opinion provides a concrete rule for future ballot-qualification disputes involving nonpartisan candidates.
  • Constraining election contests to result-changing irregularities: The Opinion, drawing on HRS § 11-172 and Dicks/Akaka, signals that an election contest is not a preferred vehicle for broad constitutional challenges unless connected to actionable election-official conduct that could change outcomes.
  • Procedural signal: The court’s willingness to convert to summary judgment upon considering vote totals underscores that contestants should expect early dispositive rulings when the material facts (vote numbers and statutory thresholds) are undisputed.

4. Complex Concepts Simplified

  • Election contest (HRS § 11-172): A fast, specialized lawsuit that challenges an election’s result. It must allege provable issues (fraud, errors, irregularities) that could actually change who advances or wins—not just that a rule feels unfair.
  • Summary judgment: A decision without trial when there is no real dispute about important facts and the law clearly favors one side. Here, once vote totals and statutory thresholds were considered, the court treated the case as resolvable as a matter of law.
  • Equal protection: A constitutional requirement that government not treat similarly situated persons differently without sufficient justification. The court held that the State can structure primaries so that nonpartisan candidates demonstrate support through thresholds, consistent with Hustace and Storer.
  • Blank votes and overvotes: A blank vote is when no candidate is selected for an office. An overvote is when too many candidates are selected for that office, invalidating that office’s vote. The court concluded these do not count toward the “ten percent” denominator in HRS § 12-41(b).

5. Conclusion

De La Cruz v. State delivers two practical takeaways. First, it reaffirms that HRS § 12-41(b)’s distinct advancement rules for nonpartisan candidates do not violate equal protection, applying Hustace v. Doi and the State’s interest in maintaining an effective primary system recognized in Storer v. Brown. Second, it clarifies that, for the “ten per cent” pathway in HRS § 12-41(b), the relevant “total votes cast” excludes blank votes and overvotes when the statute is read as a whole.

More broadly, the Opinion emphasizes the narrow, result-focused nature of Hawaiʻi election contests under HRS § 11-172 and HRS § 11-173.5(b): absent plausible allegations of election-official conduct or irregularities capable of changing the outcome, courts will not use election contests to relitigate the legislature’s ballot-access architecture.