Tie Elections in Hawaiʻi: Zero-Margin Overages, Burden on Election Officials, and Invalid “By Lot” Procedures Adopted Without Rulemaking

I. Introduction

Souza v. Nago arises from the 2026 Republican primary for Hawaiʻi State Representative, District 43, which ended in a 842–842 tie between Kanani Souza (Kristen K. Souza) and Sheila Medeiros. The Chief Elections Officer, Scott T. Nago, broke the tie “by lot” under HRS § 11-157 using a process in which the candidates’ names were placed inside plastic capsule “eggs” and drawn from a lau hala basket. Medeiros’ name was drawn and she was declared the winner.

Souza challenged the result in an original proceeding contest, asserting (among other claims) that (1) a documented two-ballot overage in one precinct could affect the result, and (2) the Office of Elections used an invalid, unpromulgated tie-break procedure amounting to an agency “rule” adopted without required rulemaking.

Justice Eddins’ separate opinion identifies two central legal issues:

• Zero-margin reliability: In a tied election, does a precinct-level overage of two ballots (traceable to out-of-district voters) defeat confidence in the outcome such that no nominee can be declared?
• Administrative law constraint: Is the “egg-in-basket” tie-break method an agency “rule” under HRS § 91-1 that is invalid absent HRS Chapter 91 rulemaking?

II. Summary of the Opinion

Justice Eddins reaches three principal conclusions:

• The two-ballot overage could affect the result of a tie under HRS §§ 11-153 and 11-172. Because the overage is traced to two District 40 voters mistakenly issued District 43 ballots, and no record shows whether or how those ballots were voted in the District 43 race, the outcome is unreliable and the correct result cannot be ascertained.
• The tie-break method was an unpromulgated “rule” under HRS § 91-1. Adopted without Chapter 91 notice-and-comment procedures, it is invalid; therefore, the selection produced by that method “falls with it,” relying on Green Party of Haw. v. Nago.
• No candidate was validly nominated; the primary is not “pau,” and the voters must finish it. Justice Eddins would complete the primary after the general election on a standalone District 43 ballot (rather than on the general-election ballot), and would deem the winner elected under Haw. Const. art. III, § 4 when the completed primary is certified.

The opinion does not reach Souza’s additional claims: whether the drawing was a true “lot” (Count II) and constitutional theories (Counts IV and V).

III. Analysis

A. Precedents Cited

1. Election-contest standards and “margin” analysis

• Waters v. Nago, 148 Hawaiʻi 46, 468 P.3d 60 (2019) (per curiam)
  Justice Eddins uses this case for the two recognized routes to set aside an election result: (i) an irregularity that could change who won, or (ii) the correct result cannot be ascertained due to mistake or fraud by precinct officials. He applies both routes to a tied election: with a zero margin, even a small, proven irregularity can be outcome-determinative.
• Elkins v. Ariyoshi, 56 Haw. 47, 527 P.2d 236 (1974) (per curiam)
  The opinion leans on Elkins for two propositions: (i) “difference in the election results” means a difference sufficient to overturn nomination of a candidate; and (ii) critically, the statutory power to decide who was nominated “implies a power to determine that no candidate was selected.” Justice Eddins treats Elkins as authorizing a “no nominee” judgment when the process fails.
• Dicks v. Office of Elections, 155 Hawaiʻi 102, 557 P.3d 831 (2024) (per curiam)
  Cited to reinforce that the statutory contest standard reaches any irregularity that “could cause a difference” in results under HRS § 11-172.
• 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 State relied on these to argue that overages/underages can occur in the ordinary course and may be harmless. Justice Eddins distinguishes both on the decisive point of margin: those challengers trailed by 41 votes and 108 votes, respectively, so the alleged discrepancies could not overcome the deficit. In a tie, the “margin is zero,” so there is no mathematical buffer that screens out small errors.
• Akizaki v. Fong, 51 Haw. 354, 461 P.2d 221 (1969)
  Used for the normative and constitutional-democratic framing: 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.” The opinion uses this to justify a remedy that returns the choice to voters, rather than leaving it to a discretionary administrative drawing.

2. Burden of proof, presumptions, and evidentiary allocation

• Kekona v. Abastillas, 113 Hawaiʻi 174, 150 P.3d 823 (2006)
  Cited for the proposition that absent fraud allegations, the standard is preponderance of the evidence. Justice Eddins applies this to hold Souza met her burden by showing the overage plus the out-of-district origin of the ballots makes it more likely than not the outcome is unreliable.

3. Administrative law: rulemaking vs adjudication; invalid unpromulgated rules

• Green Party of Haw. v. Nago, 138 Hawaiʻi 228, 378 P.3d 944 (2016)
  This is the cornerstone for the “unpromulgated rule” analysis. Justice Eddins analogizes the Office’s tie-break “practice” to the practice invalidated in Green Party: an agency procedure of general applicability and future effect that implements election statutes is a “rule” under HRS § 91-1 and is invalid unless adopted through Chapter 91 rulemaking. Green Party also defeats the State’s attempt to recharacterize a generally applicable practice as merely a one-off adjudication.
• In re Surface Water Use Permit Applications, 154 Hawaiʻi 309, 550 P.3d 1167 (2024)
  Cited for the conceptual distinction between rulemaking (prospective, abstract, legislative) and adjudication (concrete, past/present rights on controverted facts). Justice Eddins uses this framework to conclude that the tie-break method is rulemaking in substance because it was fixed in advance and applies to any future tie, and because “no facts” were being adjudicated when votes are equal.

4. Remedies for agency legal error

• 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)
  Used to support the proposition that where substantial rights are prejudiced by an agency’s failure to comply with governing law, courts have broad remedial authority to fashion relief that cures the prejudice—here, setting aside the tie-break selection produced by an invalid rule.

5. Statutory interpretation of primary-election contest remedies

• Funakoshi v. King, 65 Haw. 312, 651 P.2d 912 (1982) (per curiam)
  The State invoked Funakoshi to argue the court lacks authority under HRS § 11-173.5(b) to invalidate a primary and order a new one. Justice Eddins narrows Funakoshi: it concerns nullifying a completed primary that produced a winner, not addressing a primary that produced no valid nominee. He also emphasizes HRS § 11-175 (broad “do whatsoever else may be necessary” power) as the key remedial grant Funakoshi did not consider.

6. Constitutional interpretation approach

• Hilo Bay Marina, LLC v. State, 156 Hawaiʻi 478, 575 P.3d 568 (2025) (Eddins, J., concurring)
  Cited for interpretive canons emphasizing purpose and consequences. Justice Eddins uses this to argue that Haw. Const. art. III, § 4 should not be applied so literally that it would leave a seat vacant for an entire term when a primary is completed after the general election.

7. Related recent election-case context

• Iwasa v. Nago, ____ P.3d ____, No. SCEC-26-0000585, 2026 WL 2547017 (Haw. Aug. 28, 2026)
  Cited to underscore the court’s institutional obligation to issue full reasoning in consequential election disputes, especially under expedited contest procedures.

B. Legal Reasoning

1. “A tie leaves no margin for error”

The opinion’s most practically significant move is to treat margin as the functional gatekeeper of election contests. In most contests, small discrepancies are screened out because they cannot overcome the winner’s lead. But in a tie, the lead is zero, so the screening function disappears: any irregularity involving even one ballot can be outcome-determinative.

Applying HRS § 11-153 (overage/underage that “could affect the outcome”) and HRS § 11-172 (irregularity that “could cause a difference”), Justice Eddins reasons that Souza need not prove how the two misissued ballots were marked. In a tie, the mere presence of two ballots that “do not belong” in the contest is enough to unsettle the result, because the unlawful ballots could have produced a non-tie outcome in either direction.

2. Burden allocation: why election officials must account for the overage

Justice Eddins rejects the State’s attempt to keep the burden on Souza to prove the misissued ballots changed the outcome. He offers two converging rationales:

• Practical asymmetry: The missing facts—who the two voters were and how they voted—are not realistically available to the challenger. The officials conceded there is “no way to know” whether the ballots were counted in the race or for whom.
• Legal/evidentiary structure: HRS § 11-96 makes certain election records “prima facie evidence” of the facts stated. Treating that as a presumption under the Hawaiʻi Rules of Evidence, Justice Eddins invokes HRE Rule 304(a) (public-policy presumptions shift the burden of proof, not merely production). The public policy is the statutory reconciliation architecture (HRS §§ 11-153, 11-155) designed to assure the public of accurate results.

On this view, once the Over/Under Report establishes a result-relevant overage in a tie, the officials must rebut the presumption by showing the discrepancy could not have affected the result. Because the officials could not do so, Souza prevails on Count I.

3. “Egg-in-basket” as an invalid unpromulgated rule under HAPA

For Count III, the reasoning is a straightforward application of administrative law:

• HRS § 11-157 requires ties be decided “by lot,” but does not specify the mechanics.
• The Office filled that silence with a specific procedure (capsule eggs, lau hala basket, shaking, draw), adopted in advance and intended for any future tie.
• Under HRS § 91-1, a statement of procedure of “general or particular applicability and future effect” that implements law is a rule.
• Under Green Party of Haw. v. Nago, an unpromulgated rule adopted without Chapter 91 process is invalid.

The State’s “it was a one-time adjudication” framing fails because the tie-break method did not resolve contested facts specific to Medeiros or Souza; it supplied a generally applicable prospective mechanism for any tie, applied twice that day, and created before the office knew which races had tied.

4. Remedy: “no nominee” and completion by voters

Justice Eddins’ remedial approach proceeds in steps:

• Under Elkins v. Ariyoshi, the court may determine that no candidate was nominated.
• Funakoshi v. King does not bar this because Funakoshi addressed replacing a valid completed primary result; here the primary yielded no valid result.
• HRS § 11-175 supplies broad authority to “do whatsoever else may be necessary” to fully determine the proceedings—enough, in this theory, to order a completion election.

Justice Eddins diverges from the court’s ordered remedy (completion on the November 3 general ballot under a “Republican Party Voters Only” heading). He argues that, because Hawaiʻi does not register party affiliation and Haw. Const. art. II, § 4 forbids requiring a party declaration, the “voters only” label does not actually restrict participation; it would effectively open the Republican nomination to all District 43 general-election voters. He would instead complete the primary after the general election on a standalone ballot, approximating the primary’s party-choice electorate.

C. Impact

1. Election administration: heightened consequence of reconciliation errors in extremely close races

The opinion articulates a practical rule: when the margin is zero, even a small, documented accounting error becomes dispositive. If adopted in future majority opinions, this would incentivize:

• More robust service-center ballot-issuance controls (to prevent wrong-district ballots).
• More detailed post hoc audit trails capable of determining whether misissued ballots were voted in a particular contest.
• Earlier, more transparent disclosure of reconciliation anomalies to candidates before certification and tie-breaking.

2. Administrative law constraint on election “practices”

The “egg-in-basket” holding extends the logic of Green Party of Haw. v. Nago into tie-breaking: if an agency procedure determines legally meaningful outcomes and is designed for repeated use, it is likely a rule requiring Chapter 91 process. This could pressure the Office of Elections to:

• Promulgate formal rules for tie-breaking procedures under HRS § 11-157.
• Audit other long-standing election “practices” for HAPA compliance (especially those not clearly specified by statute or existing administrative rules).

3. Remedies and timing: “unfinished primary” theory

The opinion’s “unfinished primary” characterization—paired with reliance on HRS § 11-175—offers a pathway around the remedial constraint read into HRS § 11-173.5(b) by Funakoshi v. King. In future contests, litigants may frame relief not as “invalidating and re-running” a primary, but as “completing” a primary that produced no lawful nominee due to a reliability defect.

IV. Complex Concepts Simplified

• Overage / Underage: An “overage” means more ballots were counted than the records show were issued to voters in that precinct or voting location; an “underage” means fewer ballots were counted than expected from issued ballots (e.g., a voter checked in but did not cast).
• “Margin is zero”: In a tie, there is no vote cushion. One stray ballot can change the winner; therefore, irregularities that would be harmless in a landslide can become decisive.
• “By lot” (HRS § 11-157): The statute requires randomness to break a tie, but does not detail the randomization mechanics. The opinion argues that when the agency specifies the mechanics, it is making a legally significant procedural choice.
• Agency “rule” (HRS § 91-1): A rule is not just something written in a regulation book. If an agency adopts a general procedure it plans to use again to implement a statute, that procedure can be a “rule” requiring formal rulemaking.
• Chapter 91 rulemaking: Hawaiʻi’s Administrative Procedures Act generally requires notice, opportunity for public input, and other safeguards before an agency adopts binding procedures of general applicability.
• Prima facie evidence & presumptions (HRS § 11-96; HRE Rule 304): If the law says an official record is “prima facie evidence,” courts may treat it as creating a presumption. Some presumptions, when grounded in public policy, can shift the burden of proof to the opposing party.

V. Conclusion

Justice Eddins’ separate opinion proposes a rigorous integrity principle for tied elections: a tie cannot be broken unless it is first shown to be real and reliable. In that setting, a documented two-ballot overage traced to out-of-district voters undermines ascertainability of the true result, and the burden should rest with election officials—who control the records and processes—to account for it.

The opinion also extends Hawaiʻi administrative-law discipline into election mechanics: a tie-break procedure designed for repeated use is a rule under HRS § 91-1, invalid without Chapter 91 rulemaking, making the resulting “winner by practice” vulnerable to being set aside.

Finally, the opinion reframes remedial power in primary contests by distinguishing “invalidating a completed primary” from recognizing an “unfinished primary” with no valid nominee—invoking HRS § 11-175 to return the decision to voters. Whether or not adopted by a future majority, this framework offers a coherent, election-integrity-centered blueprint for resolving the rare but high-stakes problem of tied elections in Hawaiʻi.