Disputed Tiebreaker Spurs New Rematch Request Of Supreme Court

Less than a week after ordering the state Office of Elections to redo a state House race that was settled in a controversial tiebreaker, the Hawaiʻi Supreme Court is being asked to order a redo of another contest decided by a tiebreaker last month.

State Sen. Kurt Fevella on Wednesday submitted an emergency request to have the justices examine his loss to challenger Bob McDermott.

Fevella, who represents Senate District 20 (‘Ewa Beach, Ocean Pointe, ‘Ewa by Gentry, Iroquois Point, portion of ‘Ewa Villages), cited Souza v. Nago in his filing.

In that case, the high court ruled in favor of Rep. Kanani Souza on her challenge to Chief Elections Officer Scott Nago. The court disagreed with the argument of the Hawaiʻi attorney general that Souza shouldered the burden of demonstrating the tiebreaker was improper. Instead, it ruled, the burden of proof fell to the state.

The justices ordered another election in the race to be held, which will occur the same day as the Nov. 3 general election.

The justices also faulted the elections office for not taking into consideration two invalid ballots mistakenly issued to voters in another House district, as they were enough to alter the outcome of the race.

Those same ballots could have potentially changed the outcome in House District 43 (Kapolei, Makakilo), the justices determined, and also in Senate District 20. Both districts are located in West Oʻahu.

The court also decided that the state did not follow proper rule-making with the method it chose to conduct the tiebreaker. The names of the candidates were placed in plastic egg shells like those used during Easter and then drawn from a lauhala basket to determine the winner.

In his petition, Fevella directly cited a Hawaiʻi Supreme Court case from 1969, Akizaki v. Fong: "The fundamental interest to be protected here is that of the people. . . in choosing whomever they please to represent them."

The petition also states, "Here, the Republican primary election for the Senate District 20 race is not pau. Just as it is not pau in the State House District 43 race." The language, using the Hawaiian word for "finished" or "completed," directly echos the judgement of Associate Supreme Court Justice Todd Eddins in Kanani v. Souza.

It's not clear what the high court might do. The elections office told the court last week that the ballots will start to be printed Friday.

Unlike Souza, Fevella missed the Aug. 24 deadline to file an election complaint. But Fevella argues that it was not until the Souza v. Nago case that he learned of the problems with the election.

"I did not have the information then," Fevella told Civil Beat late Wednesday. "Basically, Nago needs to follow the law."

The justices themselves during their Sept. 2 hearing mentioned the parallels between Senate and House races multiple times.

"This Petition presents an issue that must be resolved before the 2026 General Election ballot is irreversibly finalized and distributed," according to Fevella's filing.

Asked for comment, McDermott, who previously served in the state House, said that the process should be allowed to "play itself out. But it is sure a long primary season. It's in God's hands."

Fevella is one of three Republicans in the 25-member Senate controlled by Democrats, while Souza is one of 10 Republicans in the 51-member House.