I can’t wait for the Hawaii Supreme Court to post the recording of yesterday afternoon’s oral arguments in the election challenge for the Honolulu City Council’s District 4 race between incumbent Trevor Ozawa and challenger Tommy Waters. Hopefully it will show up later today in the Oral Arguments Recordings Archive maintained by the State Judiciary.

From what I’ve seen, the process–culminating in yesterday’s oral arguments–has exposed real problems in the state’s election process and the administration of the Office of Elections.

In some cases, it has been a case of tradition vs law. That is, the Office of Elections has defended it’s procedures, at least in part, by arguing, in essence, “we’ve always done it this way.” So what’s your authority for doing it that way? “Past practice,” they reply.

News reporting so far has focused on the handling of absentee ballots that were not in the hands of election officials by the time the polls closed at 6 p.m. State election law requires absentee ballots returned by mail “…must be received by the clerk issuing the absentee ballot not later than the closing of the polls on any election day.”

Although I wasn’t at yesterday’s hearing, I’ve been reviewing comments by others in attendance.

It was apparently acknowledged that at least 350 ballots delivered to the clerk after 6 p.m. were considered valid and counted, which Waters contends is contrary to law, and in the process they were commingled with other ballots, making it impossible to do a recount that does not include the challenged ballots.

The Office of Elections argued that the U.S. Postal Service was its “authorized representative.” The problem is that state election law doesn’t recognize a role for any “authorized representative” in handling mail-in absentee ballots, although it does explicitly do so in the case of handling other categories of ballots.

Signatures used to validate absentee ballots were apparently apparently checked using signatures in the Department of Motor Vehicles database. Some 5% of absentee ballots were rejected because they didn’t match. However, state law, and rules of the Office of Election, do not reference DMV records.

Election law requires election officials to determine “(w)hether the signature corresponds with the absentee request or register as prescribed in the rules adopted by the chief election officer.”

And the rules adopted by the Chief Election Officer similar require that the signature correspond with the voter’s signature on their request for absentee ballot or voter registration affidavit. Again, no authority is given to instead use signatures in drivers license records.

One member of the audience noted on Facebook as the state argued its point, “Justice Nakamura seems peeved.”

Waters also argues that the automated ballot counting system relied on by the state can fail to recognize the clear intent of voters, and that this can be deciding in a close election. For example, according to documents filed in the case, a voter who fails to completely fill in the space indicating a vote for a candidate and instead uses a “marginal mark,” including an “x”, a check mark, circling the choice, etc., risks not having that vote counted.

And I was struck by election officials over reliance on the vote counting machines. In documents filed in court, election officials essentially said that the machines, if operating properly, don’t make mistakes. All valid votes are counted, they argued.

And what constitutes a valid ballot? Ballots that are able to be read and counted by the machines, they said.

It seems to me that’s committing a logical error that leads to the incorrect assumption that the voting machines are infallible.

In any case, as I said in the beginning, I’m anxious to listen to the oral arguments, and then go back and reread some of the court filings. It seems to me that this case has again disclosed the ugly underbelly of our voting system.

But, they say, “we’ve always done it this way.” Case closed?