Souza v. Nago: Tie-Breaker-by-Lot Procedures Are HAPA “Rules,” and a Tie Plus Unresolvable Overage Requires a New Primary Election

Introduction

Souza v. Nago (Supreme Court of Hawaiʻi, Sept. 4, 2026) is an original election-contest proceeding arising from the Republican primary for State Representative, District 43. Plaintiff Kristen K. (Kanani) Souza challenged (1) a two-ballot overage in one precinct in a race that ended in a 842–842 tie with Defendant Sheila Medeiros, and (2) the legality of the Chief Election Officer’s tie-breaker method used to resolve the tie.

The core issues were:

  • Whether a documented overage exceeding the margin in a tied primary establishes a contestable “mistake or irregularity” that could change the outcome, particularly where the correct result cannot be reconstructed.
  • Whether the Office of Elections’ chosen tie-breaking method “by lot” constitutes a “rule” under the Hawaiʻi Administrative Procedure Act (HAPA), requiring formal rulemaking before use.
  • What remedy is authorized when the primary yields no ascertainable nominee and the tie-breaker procedure was implemented unlawfully.

Summary of the Opinion

The court entered judgment for Souza on Count I (Overages) and Count III (HAPA noncompliance), dismissed the remaining counts as moot, and held that neither candidate was nominated nor elected.

On the merits, the court found:

  • The official Over/Under Report showing a two-ballot overage in a precinct within District 43, with no offsetting underage, was prima facie evidence that two ballots were counted that were not properly attributable to eligible voters in that precinct.
  • The overage exceeded the margin (zero) and therefore “could cause a difference” in the election result under the election-contest statutes.
  • The City identified the likely source: two voters from a different precinct were mistakenly issued District 43-03 ballots; however, the ballots could not be retrieved or “subtracted,” and the votes on those ballots in the District 43 contest could not be determined.
  • The Chief Election Officer’s tie-breaker method was tantamount to a HAPA “rule,” and the Office of Elections erred by using it without following HAPA rulemaking.
  • Laches did not bar the challenge because Souza learned of the method while it was underway and filed within nine days.

As a remedy, the court ordered a new election between Souza and Medeiros to be held concurrently with the 2026 general election, with the ballot marked “Republican Party Voters Only,” and it ordered the Chief Election Officer to expeditiously promulgate rules implementing the tie-breaker statute.

Analysis

Precedents Cited

Akizaki v. Fong

The court began with first principles from Akizaki v. Fong, emphasizing that voting is foundational and includes “the right to have one’s vote count” and “as nearly perfect an election proceeding as can be provided.” This framing matters in two ways: (1) it signals a low tolerance for administrative mistakes that affect tabulation integrity, and (2) it supports robust judicial remedies when statutory standards for uncertainty in results are met.

Waters v. Nago

Waters v. Nago supplied the governing test for election challenges: a plaintiff must establish either (1) errors, mistakes, or irregularities that could change the outcome, or (2) that the correct result cannot be ascertained because of mistake or fraud by precinct officials. The court used Waters as the doctrinal bridge between a documented overage and the legal conclusion that a contest is proven where the margin is exceeded and the correct result cannot be reconstructed—even absent fraud.

Green Party of Haw. v. Nago

The court relied on Green Party of Haw. v. Nago to classify the tie-breaking method as tantamount to a HAPA “rule.” Green Party stands for the proposition that election-administration practices of general applicability—especially those that effectively prescribe standards or procedures affecting public rights—may constitute “rules” requiring notice-and-comment rulemaking. Here, the tie-breaker procedure was not merely an internal housekeeping step; it determined who would be declared nominated/elected, implicating public participation and advance notice values HAPA is designed to protect.

Lewis v. Cayetano

The State’s laches argument invoked the principle in Lewis v. Cayetano that parties generally must raise correctable election-process defects before the election, absent fraud or major misconduct. The court distinguished Lewis on timing and opportunity: Souza did not have meaningful advance notice of the tie-breaker method, learned of it while underway, and filed promptly thereafter. Thus, the equities underlying laches—preventing strategic, after-the-fact objections when earlier correction was possible—were not present.

Elkins v. Ariyoshi

The court cited Elkins v. Ariyoshi to support its remedial authority under the election-contest statutes. Elkins is used here for the proposition that, in unusual scenarios, the court may fashion relief consistent with statutory structure to ensure a legitimate electoral outcome. The citation signals that the remedy is not limited to simply affirming results or installing a candidate; it can include re-submission to the electorate when a “nominee” cannot be lawfully identified.

Funakoshi v. King

Funakoshi v. King served as a limiting contrast: the court there refused to invalidate an election where the plaintiff failed to show the complained-of irregularities could have caused a difference. By citing Funakoshi, the court underscored the analytical hinge in Souza: because the overage exceeded the margin (zero), this case satisfied the statutory and doctrinal threshold that Funakoshi did not.

Legal Reasoning

1) The overage established a contestable irregularity that could change the result

The court treated the official Over/Under Report as prima facie evidence that two ballots were counted in Precinct 43-03 “from voters who were not accounted for in that precinct.” Critically, the court did not require Souza to prove how the two ballots were marked—because the statutory and Waters standards focus on whether the irregularity could change the result, and on whether the true result is ascertainable.

In a tied election, the “margin” is zero. An overage of two ballots necessarily exceeds the margin, so the court concluded it “could cause a difference.” The factual record reinforced the legal conclusion: officials could not retrieve the ballots or reconstruct the correct tally, and the Chief Election Officer acknowledged the overage could have caused a difference.

The court also noted there was no allegation of fraud; the decision therefore clarifies that non-fraudulent, documented administrative errors can be outcome-determinative for purposes of election contests.

2) The tie-breaker method “by lot” was a HAPA rule adopted without rulemaking

HRS § 11-157 requires ties be decided “by lot,” but it does not specify operational details (e.g., container type, mixing method, selection protocol, transparency measures). The Chief Election Officer implemented a specific method (balls in containers, placed into a sealed lau hala container, shaken, and drawn) without prior rulemaking.

Applying Green Party of Haw. v. Nago, the court held that this method was tantamount to a “rule” under HAPA. The central reasoning is functional: because the procedure has general applicability and affects fundamental rights and candidate outcomes, it triggers HAPA’s procedural safeguards, including public notice and the opportunity to submit views.

The court’s approach also implicitly rejects the idea that “by lot” automatically insulates any chosen mechanism from administrative-law constraints. “Randomness” is not self-defining: design choices can affect perceived legitimacy, transparency, auditability, and public confidence—precisely the concerns HAPA procedures are meant to surface before implementation.

3) Remedial authority: returning the nomination to the voters

The remedy is the opinion’s most institutionally significant component. The court read HRS § 11-173.5(b) (primary-election contest judgment) together with HRS § 11-175 (broad authority to “do whatsoever else may be necessary”) to conclude it could order a new election where the primary produced no legally reliable nominee.

The court ordered the election to be held concurrently with the general election and limited to the same two Republican candidates. It further ensured constitutional compliance by stating that, under article II, section 4 of the Hawaiʻi Constitution, no voter may be required to declare a party preference as a condition of voting in District 43, while still labeling the contest “Republican Party Voters Only.”

Finally, the court coupled case-specific relief with a systemic directive: the Chief Election Officer must promulgate rules to implement HRS § 11-157—transforming this decision into forward-looking governance guidance.

Impact

1) Elevating over/under reports from administrative artifacts to litigation-driving evidence

The court’s use of the Over/Under Report as prima facie evidence strengthens the practical litigation value of reconciliation documents. In close elections—especially ties—documented overages/underages may be sufficient to meet the “could cause a difference” threshold without proving voter intent on the disputed ballots.

2) Constraining ad hoc election procedures through administrative law

The holding that a tie-breaker method is tantamount to a HAPA “rule” signals that election officials must treat certain “procedural choices” as legally consequential. The immediate implication is for tie-breaking, but the rationale may extend to other standardized practices not expressly codified yet determinative of outcomes (e.g., certain counting center protocols, chain-of-custody practices, or standardized dispute-resolution methods), depending on how broadly future courts read “general applicability” and “effect on rights.”

3) Remedy precedent: new election concurrent with general election

The decision models a remedy for an otherwise timing-sensitive crisis: ordering a new contest concurrent with the general election rather than attempting post hoc “ballot surgery.” Future litigants may cite Souza for the proposition that when the correct result is unknowable and the statutory process fails (including through unlawful procedure), the legally safest resolution is often a renewed vote under judicially supervised parameters.

4) Incentives for proactive rulemaking and transparency

By ordering expedited promulgation of tie-breaker rules, the court converts what might have been viewed as a narrow dispute into an institutional mandate. The likely long-term effect is increased pre-election transparency, reduced litigation risk, and strengthened public confidence in rare-but-high-stakes tie scenarios.

Complex Concepts Simplified

  • Overage / Underage (HRS § 11-153): An overage means more ballots were counted than documented usage indicates should exist; an underage means fewer. These are reconciliation discrepancies that can indicate mistakes even without fraud.
  • “Could cause a difference” (HRS § 11-172): A contest does not always require proof of the exact alternate winner. It can be enough to show an irregularity large enough to potentially change the result—especially where the true count cannot be reconstructed.
  • Prima facie evidence: Evidence sufficient to establish a fact unless rebutted. Here, the official over/under report was enough to show two questionable ballots were included in the official tally.
  • HAPA “rule”: A generally applicable agency procedure that affects rights or outcomes may require formal adoption through notice, public comment/hearing, and related procedural safeguards.
  • Laches: An equitable doctrine barring late claims when delay is unreasonable and prejudicial. The court rejected laches because Souza lacked earlier notice and acted promptly.
  • Mootness: Once the court granted relief on Counts I and III, the remaining challenges to the tie-breaker’s legality and constitutionality no longer affected the outcome and were dismissed.
  • “By lot” (HRS § 11-157): A legally authorized random selection method to break ties, but Souza clarifies that the implementation details of randomness may need to be established by rule.

Conclusion

Souza v. Nago establishes two practical and doctrinally important points in Hawaiʻi election law: (1) in a tied primary, a documented overage exceeding the margin—coupled with the inability to reconstruct the correct tally—satisfies the statutory standard for an election contest and can defeat a declared outcome; and (2) the Chief Election Officer’s tie-breaking methodology “by lot” is not immune from administrative-law constraints—when implemented as a standardized procedure, it is tantamount to a HAPA “rule” requiring rulemaking.

Equally significant is the court’s remedy: invoking broad statutory authority to return the decision to the electorate through a new election conducted concurrently with the general election, while directing expedited rulemaking to prevent recurrence. The opinion therefore functions both as a case-specific correction and as a governance-oriented precedent promoting transparency, public participation, and election integrity.