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Tommy Waters filed a complaint with the State Supreme Court Monday afternoon, asking the court to stop the election results in the Honolulu City Council District 4 race from being certified. He asks the court to order a manual recount “in an honest and fair manner by human beings to determine the actual winner of the District 4 election.”

You can read the complaint here.

The complaint makes two arguments.

First, Waters alleges the last batch of 1,286 absentee ballots were miscounted. He asks that these “miscounted ballots” be set aside, “and Candidate Waters be declared the winner as reported by the office of elections in the 4th printout.”

He alleges that these ballots are invalid because they were not delivered to the clerk until nearly six hours after the polls had closed. Waters cites election laws requiring that absentee ballots be received by the clerk before the closing of the polls on election day.

Elections chief Scott Nago responded to a post-election email from Waters with data regarding absentee ballots, and over-and-under ballots, and how they were handled.

Second, Waters argues that Ozawa’s razor-thin 22 vote margin “is .0006 of 1 percent, and falls within the margin of error for the vote counting machines used in Hawaii for the 2018 general election.” Therefore, he says, the normal error rate “could cause a difference in the outcome” of the election.

Waters says the court to order all 39,610 ballots cast in the District 4 race, “as well as all spoiled and so called ‘invalidated’ ballots be reviewed and counted manually” to determine the winner.

The complaint cites prior court cases holding that “[a] complaint challenging the results of a special general election pursuant to HRS § 11-172 fails to state a claim unless the plaintiff demonstrates errors, mistakes or irregularities that would change the outcome of the election.”

One item of interest. According to the email from Scott Nago to Waters, filed along with the complaint, attorney Lex R. Smith had contacted the Attorney General’s office seeking data about the District 4 votes. His request was apparently made at the same time as Waters contacted the Office of Elections.

In his email to Waters, Nago said “the Department of the Attorney General was under the impression that he (Smith) was representing you.”

Smith later told the AG that he was not representing Waters, but could understand how this misunderstanding could have occurred, according to Nago’s email.

Smith is chairman of Mayor Kirk Caldwell’s campaign committee, according to the organization report on file with the Campaign Spending Commission.

Incumbency almost always translates into campaign cash during election season. Most incumbents are reelected in a typical year, and those who depend on their decisions–that is, those who make up most of the money going into election campaigns–tend to be conservative and put money into the campaigns of incumbents.

The power of incumbency can be seen quite clearly contested race for the Honolulu City Council’s District 4 seat. I’m still looking through the data, and here are a few more relevant facts and figures. Keep in mind that these numbers reflect contributions through October 22, 2018, the latest complete figures available, and will be updated when final reports covering the period through the General Election are due on December 6.

There were 41 donors who gave the incumbent, Trevor Ozawa, the maximum $4,000 contribution allowed by law during the campaign during the campaign period through October 22, 2018. These “maxed out” donors contributed a total of $164,000, or 31% all the contributions received.

By comparison, Tommy Waters, the challenger, had just 13 contributors giving the maximum allowed.

There were several groups of corporate execs and family members who combined to give larger amounts to Ozawa and, presumably, enjoy added influence and access following the election. Officers and employees of The Kobayashi Group, along with family members, topped the councilmember’s contributor list with a combined $27,500 in campaign contributions. Donors associated with R.M Towill gave $15,000, while those linked to Mitsunaga & Associates and H2O Process Engineering Limited each added $14,000.

Waters, by comparison, did not have a single group that combined to give more than the $4,000 maximum.

Here are the lists of the top contributors to both candidates, drawn from their reports filed with the Campaign Spending Commission.

Contributors to Trevor Ozawa who gave the maximum $4,000 allowed by law through October 22, 2018:

Contributors to Tommy Waters who gave the maximum $4,000 allowed by law through October 22, 2018:

Unless overturned by an as-yet-to-be-requested recount, City Councilmember Trevor Ozawa has been reelected by a 22-vote margin, despite a strong challenge from former legislator Tommy Waters.

That’s 22 votes out of 36,894 votes cast!

Hawaii News Now reported this week that Waters is preparing to ask the Hawaii Supreme Court to order a recount, but that looks like a long shot at this point in time.

So what accounts for Ozawa’s winning margin?

I think this is one of those instances where the best advice is to follow the money.

A quick check with the candidates reports to the Campaign Spending Commission shows that Ozawa had a huge lead in campaign cash.

It wasn’t even close.

Ozawa raised more than 2.5 times the amount taken in by Waters’ campaign through October 22, and outspent the challenger by more than 3-1.

With that large a fundraising advantage, it’s a wonder that Waters was able to come within a handful of votes of the incumbent.

The final reports showing contribution and expenditure totals through the day of the General Election are due on December 6. I expect that, if anything, they’ll increase the financial gap between the two candidates.