Tie Elections Require Accounted Ballots and Promulgated “Lot” Procedures; Courts May Order a Completion Election Under HRS § 11-175

I. Introduction

Souza v. Nago (Haw. Sept. 4, 2026) is a consequential Hawaiʻi Supreme Court election-contest decision arising from an extraordinary set of facts: a Republican primary for State Representative, District 43 ended in an 842–842 tie between Sheila Medeiros and Kanani (Kristen K.) Souza. Hawaiʻi law instructs that ties be resolved “by lot” under HRS § 11-157. Chief Elections Officer Scott T. Nago conducted a “lot” by placing each candidate’s name into plastic egg-like capsules, shaking them in a lau hala basket, and drawing one—selecting Medeiros.

Souza challenged the result through an original proceeding election contest against Nago and other election officials, and Medeiros was joined as a defendant. Two central issues dominated:

  • Ballot accounting / overage in a tied race: election reconciliation records showed a two-ballot overage in one precinct—two more ballots counted than voters recorded as voting—traceable to two out-of-district voters (District 40) being issued District 43 ballots and casting them.
  • Administrative law validity of the tie-break method: whether the Chief Election Officer’s chosen “egg-in-basket” procedure was an invalid, unpromulgated agency rule under Hawaiʻi’s Administrative Procedures Act (HRS Chapter 91).

The court’s resolution did more than decide the immediate dispute: it clarified how burdens of proof operate in zero-margin contests, limited agencies’ ability to improvise election-deciding procedures without rulemaking, and confirmed a pathway to return an unresolved primary to the voters.

II. Summary of the Opinion

The court held:

  1. The two-ballot overage could affect the outcome of a tie and rendered the result unreliable. In a tied race, even one improper ballot can matter. The burden of showing the two ballots were lawfully cast rested on election officials, not Souza. Because the record could not determine whether the two out-of-district ballots contained votes in the tied race—or for whom—the outcome could not be trusted under HRS §§ 11-153 and 11-172.
  2. The tie-break procedure was an invalid unpromulgated rule. The “egg-in-basket” method was a “rule” under HRS § 91-1 and required rulemaking. Because it was adopted without HAPA procedures, it was invalid, and the selection produced by it was void. The court relied particularly on Green Party of Haw. v. Nago.
  3. No candidate was validly nominated. With an unreliable tie and an unlawful tie-break, the court concluded the primary produced no valid nominee.
  4. Remedy: a “completion” election on the general-election ballot. Invoking HRS § 11-175, the court ordered the District 43 Republican primary be completed by a vote on the November 3, 2026 general-election ballot, with the winner deemed elected under Haw. Const. art. III, § 4 (because no other-party candidate filed).

The court resolved the case on statutory and administrative-law grounds (Counts I and III) and did not reach additional claims (including whether the drawing was a true “lot” and constitutional challenges).

III. Analysis

A. Precedents Cited

1. Waters v. Nago (2019): Two paths to set aside an election result

The opinion frames election contests around two established routes drawn from Waters v. Nago, 148 Hawaiʻi 46, 468 P.3d 60 (2019) (per curiam):

  • show an irregularity that could change who won; or
  • show the correct result cannot be ascertained because of a mistake or fraud on the part of precinct officials.

Souza is notable because the court found both routes satisfied in a tie: the overage “could” affect the outcome, and the true result could not be ascertained because officials could not determine whether the two out-of-district ballots were counted in the tied race, or how.

2. Elkins v. Ariyoshi (1974): “Could cause a difference” means enough to overturn—plus the “no nominee” possibility

The court relies on Elkins v. Ariyoshi, 56 Haw. 47, 527 P.2d 236 (1974) (per curiam) in two key ways:

  • Interpreting “a difference in the election results” to mean a difference sufficient to overturn a nomination. In a tie, this analysis becomes decisive: there is no lead to overcome, so a small number of questionable ballots can meet the threshold.
  • The court invokes Elkins’s footnote recognizing that the power to decide who was nominated implies power to determine no candidate was selected. This becomes critical to distinguishing the remedy from invalidating a finished primary.

3. Dicks v. Office of Elections (2024): Reinforcing the contest standard under HRS § 11-172

Dicks v. Office of Elections, 155 Hawaiʻi 102, 557 P.3d 831 (2024) (per curiam) is cited to support the reading that an election may be set aside when an irregularity could cause a difference in results under HRS § 11-172. The court in Souza uses Dicks as part of the doctrinal chain confirming that “could” is the operative threshold—then explains how the margin (here, zero) determines whether that threshold is met.

4. The “overage” cases: Waters v. Nago (2014) and Cushnie v. Nago (2024)

The State relied on two prior overage decisions to argue overages are routine and non-probative absent more evidence: Waters v. Nago, No. SCEC-14-0001317, 2014 WL 7334915 (Haw. Dec. 24, 2014) and Cushnie v. Nago, No. SCEC-24-0000797, 2024 WL 5183213 (Haw. Dec. 20, 2024).

The court sharply limits those precedents to their facts. In both, the contestant was behind by a meaningful margin (41 and 108 votes respectively) and could not show enough improper ballots to change the outcome. In Souza, the court emphasizes the doctrinal pivot: “The margin is the filter.” With a zero margin, even one improper or unaccounted ballot can matter, so the “routine overage” framing cannot dispose of the case.

5. Kekona v. Abastillas (2006): Preponderance standard in non-fraud contests

The court cites Kekona v. Abastillas, 113 Hawaiʻi 174, 150 P.3d 823 (2006) for the standard of proof: where no fraud is pled, preponderance of the evidence suffices. This matters because Souza could not prove how the two voters voted; instead, she proved it was more likely than not that the outcome was unreliable given the tie and the untraceable out-of-district ballots.

6. Green Party of Haw. v. Nago (2016): Unpromulgated election practices as invalid rules

The administrative-law heart of Souza rests on Green Party of Haw. v. Nago, 138 Hawaiʻi 228, 378 P.3d 944 (2016). Green Party treated a one-election practice (directing wrong-precinct voters) as a “rule” under HRS § 91-1 requiring formal rulemaking. Souza extends and applies that principle to tie-breaking: when the statute says “by lot” but the agency supplies the operative method, the method is a “rule” if it prescribes agency procedure for future effect.

7. Rulemaking vs adjudication: In re Surface Water Use Permit Applications (2024)

The court invokes In re Surface Water Use Permit Applications, 154 Hawaiʻi 309, 550 P.3d 1167 (2024) to distinguish adjudication (concrete resolution of disputed facts and liabilities) from rulemaking (forward-looking standards affecting rights in the abstract). Souza uses this to reject the State’s attempt to recast the tie-break method as a one-off adjudicative act: there were no disputed facts about the tie; the Chief Election Officer announced a general method applicable whenever a tie occurs.

8. Remedies for unlawful agency action: Nakamine v. Bd. of Trs., Emps.' Ret. Sys. (1982) and Martell v. Emp. Ret. Sys. (2026)

The court cites Nakamine v. Bd. of Trs., Emps.' Ret. Sys., 65 Haw. 251, 649 P.2d 1162 (1982) and Martell v. Emp. Ret. Sys., 158 Hawaiʻi 139, 588 P.3d 1152 (2026) for the principle that courts may fashion relief when an agency prejudices substantial rights by failing to follow governing law. This supports voiding the tie-break selection produced by an invalid rule.

9. The key remedial boundary case: Funakoshi v. King (1982)

The State leaned on Funakoshi v. King, 65 Haw. 312, 651 P.2d 912 (1982) (per curiam) for a restrictive reading of HRS § 11-173.5(b), arguing the court lacks power to invalidate a primary and order a new one.

Souza distinguishes Funakoshi in a way that creates a practical, doctrinal roadmap:

  • Funakoshi applies when the primary produced a winner. It bars nullifying a completed primary to “start over.”
  • Souza concerns an unfinished primary that produced no valid nominee. The court is not undoing a valid nomination; it is recognizing that none exists.
  • The court identifies a statutory source for additional remedial authority not addressed in Funakoshi: HRS § 11-175, authorizing the court to “do whatsoever else may be necessary” to fully determine the proceedings and enforce decrees.

10. The normative anchor: Akizaki v. Fong (1969)

The court quotes Akizaki v. Fong, 51 Haw. 354, 461 P.2d 221 (1969) for foundational voting-rights principles: the right to vote includes the right to have one’s vote count and to have “as nearly perfect an election proceeding as can be provided.” This frames the remedy—returning the decision to voters—as aligned with democratic legitimacy rather than administrative happenstance.

11. Procedural context: Iwasa v. Nago (2026)

The court cites Iwasa v. Nago, ____ P.3d ____, No. SCEC-26-0000585, 2026 WL 2547017 (Haw. Aug. 28, 2026) to justify issuing a full opinion despite the statute’s demand for speedy judgment. The citation signals an institutional choice: election law disputes may require full reasoning because they recur and guide officials and voters.

B. Legal Reasoning

1. “A tie leaves no margin for error” (the margin as a doctrinal filter)

The court’s first major analytical move is to center the margin of victory as the practical and legal threshold for contest claims. In a typical contest, minor irregularities may fail because they cannot mathematically overcome the winner’s lead. But when the race is tied, the court treats “zero margin” as a special case: any ballot that should not have been counted, or any ballot that should have been counted but wasn’t, can change the outcome.

This reasoning transforms the overage from a bookkeeping curiosity into an outcome-critical irregularity. The court rejects the State’s attempt to impose an impossible burden on the contestant (proving how unidentified voters voted), reasoning that—given the tie—the contestant need only show the existence of improper/unaccounted ballots capable of altering the result.

2. Burden allocation: why election officials must account for outcome-relevant overages in a tie

A central practical holding is burden-related: the burden of showing the questioned ballots were lawfully cast fell on election officials, not on Souza. The court supports this in overlapping ways:

  • Access and institutional competence: Souza could not identify the voters or reconstruct their choices; officials controlled the processes and records yet conceded they could not determine whether the two ballots were counted in the race or for whom.
  • Preponderance standard: the reconciliation report showing a two-ballot overage traced to out-of-district voters made it more likely than not that the result was unreliable.
  • Statutory-evidentiary presumption: the court treats HRS § 11-96 (election records as “prima facie evidence”) together with HRE Rule 305 and HRE Rule 304(a) as creating a public-policy presumption that can shift the burden of proof to the party against whom it is directed (here, officials defending the count).

Doctrinally, this is one of the opinion’s most important moves for future litigation: in the context of outcome-relevant reconciliation discrepancies—especially in a tie—the court treats the statutory recordkeeping scheme as reflecting a public policy strong enough to shift more than mere production burdens.

3. “Correct result cannot be ascertained” because the error was out-of-district ballots in a single-member district race

The court’s second route to relief, drawn from Waters v. Nago (2019), depends on whether the correct result can be determined. The court reasons that not all overages are equal:

  • Benign overage scenarios might include paperwork lapses, or a wrong-precinct ballot within the same contested district where the vote would still be valid in the relevant race.
  • This overage was not benign because two voters from a different representative district received District 43 ballots and cast them, and in a single-member district race those voters “had no right to decide” the contest.

Because the record could not reveal whether either ballot recorded a vote in the tied contest (and if so, for whom), the court concluded the true result was beyond ascertainment—precisely the kind of “mistake” that undermines the reliability of the election outcome.

4. The tie-break method as an unpromulgated “rule” under HAPA

The court’s administrative-law holding is structurally straightforward but highly consequential:

  • HRS § 11-157 requires ties be decided “by lot” but does not specify the procedure.
  • The Chief Election Officer filled that silence with a fixed method (capsules + basket + shake + draw).
  • Under the broad definition in HRS § 91-1, a statement describing agency “procedure” or “practice requirements” of future effect is a rule.
  • The method had “future effect” because the Chief Election Officer adopted it in advance for any future tie, and in fact used it twice the same day. The court rejects the argument that a rule applied once becomes adjudication; applying a rule in an individual case is how rules operate.
  • Under Green Party of Haw. v. Nago, a rule not adopted through required Chapter 91 procedures is invalid.

The result: the method was invalid, and the selection produced by it was void. This holding pressures election administrators to formalize tie-break procedures through rulemaking rather than improvisation.

5. Remedy: declaring “no nominee” and ordering a completion election under HRS § 11-175

The remedy is where Souza most clearly makes “new law” in practical terms. The court reconciles HRS § 11-173.5(b) (directing the court to decide “what candidate was nominated or elected”) with Funakoshi v. King and Elkins v. Ariyoshi by holding:

  • The court may determine no candidate was nominated when the primary failed to produce a reliable or lawful result.
  • This is not “invalidating a completed primary” as in Funakoshi; it is recognizing that the statutory presupposition of a nominee cannot be satisfied.
  • HRS § 11-175 supplies residual authority to order what is necessary to fully determine and enforce the proceeding—here, an election to complete the unfinished primary.

The court then integrates the constitutional deeming provision: because no other party filed candidates, the winner of the completion contest on general-election day is deemed elected under Haw. Const. art. III, § 4.

C. Impact

1. Practical consequences for future tie elections

  • Heightened sensitivity to ballot-accounting errors in ties: the opinion effectively establishes that when the margin is zero, reconciliation discrepancies that would be immaterial in other races can become outcome-dispositive.
  • Administrative burden to explain discrepancies: election officials cannot rely on a contestant’s inability to reconstruct how unidentified voters voted; in tie contexts, officials may bear the decisive burden to demonstrate questioned ballots are lawful and non-outcome-determinative.

2. Institutional impact on the Office of Elections and county clerks

  • Rulemaking pressure: any standardized method for “by lot” tie-breaking must be promulgated under Chapter 91 to avoid invalidation. Even well-intentioned “we’ve done it before” practices may be vulnerable if not properly adopted as rules.
  • Reconciliation records gain litigation force: by treating the statutory record scheme as reflecting strong public policy (and using evidentiary presumptions accordingly), the court elevates the legal significance of over/under reports and reconciliation compliance.

3. Doctrinal impact on remedies in primary-election contests

  • Souza clarifies a pathway around the perceived remedial narrowness of HRS § 11-173.5(b): if the court finds no nominee, it can use HRS § 11-175 to order measures necessary to complete the process.
  • The decision draws a functional line: Funakoshi v. King governs when a winner exists; Elkins v. Ariyoshi governs when the process fails and no winner can be declared.

IV. Complex Concepts Simplified

  • “Overage” / “underage”: An overage means more ballots were counted than the records show were issued or cast in that precinct; an underage means fewer ballots were counted than expected. Overages can arise from benign paperwork issues or serious errors like the wrong ballots being issued.
  • “Margin is the filter”: Whether an irregularity “could” affect the outcome depends on how close the race is. In a tie, the margin is zero, so very small irregularities can matter.
  • “By lot” (HRS § 11-157): The statute requires chance to decide a tie but does not specify the mechanics. The opinion holds that when an agency selects the mechanics as a standard method, that choice is subject to administrative rulemaking requirements.
  • Rulemaking vs adjudication: Rulemaking sets forward-looking procedures applicable to future situations (like any future tie). Adjudication resolves disputed facts about a particular case. A tie-break method fixed in advance is rule-like.
  • “Unpromulgated rule”: An agency practice that functions like a rule but was not adopted through required public procedures (notice, hearing, etc.) can be invalid, making actions taken under it vulnerable.
  • “Prima facie evidence” and presumptions (HRS § 11-96; HRE Rules 304–305): If a statute says official records are prima facie evidence, courts may treat the recorded facts as presumed true unless sufficiently rebutted. Here, that framework supported placing the proof burden on officials to rebut the significance of the overage in a tie.
  • “Completion election” under HRS § 11-175: A statutory “whatever else may be necessary” power allowing the court to order practical steps to finish an election process that failed to yield a valid nominee.

V. Conclusion

Souza v. Nago establishes and clarifies three durable principles in Hawaiʻi election law:

  1. Zero-margin contests change the contest calculus: in a tie, even a single improper or unaccounted ballot can undermine the result; an out-of-district ballot error in a tied single-member district race is especially destabilizing.
  2. Election officials must be able to account for outcome-relevant discrepancies: when official records show an overage that can affect the outcome and officials cannot trace whether or how those ballots impacted the contest, the result may be set aside.
  3. Agencies cannot improvise election-deciding procedures without rulemaking: a tie-break method adopted as a standard practice is a “rule” under HRS § 91-1; if not promulgated, it is invalid, and the selection produced by it can be voided. When no valid nominee exists, the court may declare as much and—using HRS § 11-175—order a voter-driven completion of the primary.

The opinion’s broader significance lies in its institutional message: election legitimacy depends not only on counting votes, but on demonstrable ballot integrity and legally authorized procedures—especially when chance mechanisms stand in for voter choice. When the process cannot yield a trustworthy result, the court’s remedy is to return the decision to the electorate.