Brian Evans is apparently one of those candidates for public office who just doesn’t know when to stop.

Evans ran against Tulsi Gabbard as a Republican in the 2018 2nd Congressional District race. Gabbard easily won with 74% of the vote, while Evans got just 21.7%.

This year, Evans morphed himself into a self-described progressive Democrat and ran for the same 2nd Congressional District seat against Kai Kehele and two others in the August Democratic primary. Kahele drew 100,841 votes or 65.8% of the total. Evans came in a distant second with 12,337 or 8.1% of the votes.

On August 11, just three days after the primary election, Evans–without benefit of an attorney–filed a self-styled “COMPLAINT AND OBJECTION TO THE PRIMARY RESULTS FOR CANDIDATE KAI KAHELE FOR US CONGRESS” directly with the Hawaii Supreme Court.

Despite his own poor showing in the primary, Evans asked the court to strike Kalehe from the ballot because he had not been available for several scheduled debates after being called to active duty with the Hawaii Air National Guard as part of its Covid-19 response. As a result, the debates were cancelled.

On September 25, 2020, attorneys representing the state Office of Elections filed a motion to dismiss Evans’ complaint. Then, on October 2, the Hawaii Supreme Court issued its own findings of fact, conclusions of law, and judgement, which closely followed the arguments made on behalf of the elections office.

First, the court summarized Evans’ position.

Plaintiff contends Kahele purposely availed himself of active duty with the assistance of co-conspirators within his campaign in an effort to avoid a full and fair campaign process and deprive all other candidates of their right to a fair race and public knowledge of the candidates. He further states that this was done to avoid debates with opponents in his own party and to deprive other candidates of their fair opportunities to appear in the media. Thus, he contends the court should strike Kahele as a candidate for the office and order an investigation into this matter.

Then it addressed the legal requirements needed to successfully challenge an election. Those requirements are set out in Section 11-172 HRS.

§11-172 Contests for cause; generally. With respect to any election, any candidate, or qualified political party directly interested, or any thirty voters of any election district, may file a complaint in the supreme court. The complaint shall set forth any cause or causes, such as but not limited to, provable fraud, overages, or underages, that could cause a difference in the election results. The complaint shall also set forth any reasons for reversing, correcting, or changing the decisions of the precinct officials or the officials at a counting center in an election using the electronic voting system. A copy of the complaint shall be delivered to the chief election officer or the clerk in the case of county elections.

The court’s conclusions walked through the legal requirements.

“A complaint challenging the results of an election pursuant to HRS § 11-172 fails to state a claim unless the plaintiff demonstrates errors that would change the outcome of the election,” according to the court’s ruling.

[T]he [plaintiff] must show that he or she has actual information of mistakes or errors sufficient to change the result. The [plaintiff] has the burden of demonstrating that the specific acts and conduct of which [he or she] complain[s] would have had the effect of changing the results. In the absence of facts showing that irregularities exceed the reported margin between the candidates, the complaint is legally insufficient because, even if its truth were assumed, the result of the election would not be affected.
.. .
It is not sufficient that the [plaintiff] points to a poorly run and inadequately supervised election process that evinces room for abuse or possibilities of fraud. An election contest cannot be based upon mere belief or indefinite information.

Evans’ complaint failed to present specific evidence of such “mistakes or errors.”

“Taking Plaintiff’s allegations as true and viewing them in the light most favorable to him, it is evident he has presented no set of facts that would entitle him to the requested relief,” the court found. “He does not present specific acts or actual information of mistake or error sufficient to change the election results.”

Further, the court found Evans had not presented any evidence that Kahele (or any candidate) had a legal obligation to participate in debates or even to campaign. Absent such an obligation, “the refusal to debate was not an error, mistake or irregularity that would change the result of the election.”

Finally, the court noted that striking Kahele as a candidate and launching an investigation, as requested by Evans, are remedies not authorized by statute, and therefore beyond the reach of the court even if Evans had made a more substantial case.

Evans responded with a series of motions asking the court to reconsider. All were rejected.

Then on October 3, the day immediately following the court’s ruling, Evans filed a writ of certiorari seeking permission to appeal to the U.S. Supreme Court.

In a subsequent tweet, Evans claimed: “In a rare move, the US Supreme Court is requiring Kai Kahele to Answer candidates Appeal to them after the #Hawaii Supreme Court dismissed the case without even requiring Kahele to Answer the duly served Complaint.”

Actually, the clerk of the Supreme Court sent a standard procedural notice to Kahele that a writ had been filed, noting filing requirements for a response, if Kahele chooses to file one. The court did not order Kahele to answer Evans’ complaint.

Editorial note: It would have been much smarter for Evans to have accepted the lesson in state election law provided by the Office of Elections and the Hawaii Supreme Court, and accept the court’s decision. Instead, he’s wasting the time and public money required to process an unsustainable appeal. Perhaps he believes all makes him look like a strong candidate standing up for his rights. In my opinion, his repeatedly ignoring the actual law governing Hawaii elections makes him look like just another kook misusing the legal process in an attempt to blame someone else for his poor results where it counts, in the votes cast.