HILO — The second-place finisher in a four-way race for the state House District 6 Democratic primary has filed a petition with the Hawaii Supreme Court seeking a recount or a new election for the open Kailua-Kona seat.
Kalei Akaka, the 29-year-old granddaughter of U.S. Sen. Daniel Akaka, had 1,022 votes in the primary, just 45 fewer than the winner, Nicole Lowen. The winner faces Republican candidate Roy Ebert in the Nov. 6 general election.
In the petition filed Tuesday, Akaka claims any ballots after the polls were supposed to close at the statutory 6 p.m. poll closing shouldn’t have been counted. Gov. Neil Abercrombie, in a proclamation, had extended the poll hours by 90 minutes for Hawaii Island after learning many polling places opened late.
“I am bringing this lawsuit because I feel that due to the numerous voting procedure irregularities which have been extensively covered by the media, Hawaii Island citizens were not provided with a proper and fair electoral process,” Akaka said in a statement.
The petition questions why 207 ballots were added to the race between 10:49 p.m. Aug. 11, when the state elections report showed all precincts counted, and the final report at 3:15 a.m. Aug. 12. The new ballots resulted in the same 45-vote difference between the two candidates.
Akaka’s attorney, Charles Khim of Honolulu, cites a successful state Supreme Court challenge of a 1968 election as setting precedent for Akaka’s challenge. In that case, Akizaki v. Fong, the challengers cited absentee ballots that were counted even though they were postmarked after the deadline. The court invalidated the election for two candidates in the 15th state House District and called on the governor to hold a new election.
“I honestly believe she would have won,” Khim said. “I believe her voters are voters who came out early in the morning and have jobs to go to. … They were denied their right to vote.”
Two of the five precincts in District 6 opened late, according to a state Office of Elections report. In both of those polling places, Kahakai Elementary School and Kona Palisades Community Center, Akaka came in second in voting on primary election day, first in early walk-in votes and second in mail-in absentee votes. She came in second or third in two of the other polling places, and first in all three methods of voting at Kealakehe High School, according to the state precinct reports.
“If anything, if the way the returns came in are correct, the late voting actually benefited Akaka more than myself,” Lowen said. “We had no advantage.”
Still, Lowen said, she’ll cooperate with any recount or new election.
“A fair election process is the most important thing,” Lowen said, “and I’ll be happy to see that through.”
Filing an election challenge is not all that uncommon, but winning one is, said Hawaii County Deputy Corporation Counsel Michael Udovic. He declined to talk about the specifics of the case until the county files its response, likely by Monday.
“It’s pretty difficult to prove that if something was wrong it would have changed the outcome of the election,” Udovic said. “We will be filing the appropriate responsive pleadings within the time limits.”
Candidates in Hawaii have no choice other than to petition the Supreme Court for a recount.