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Electronically Filed

Supreme Court
SCEC-18-0000908 SCEC-18-0000908
28-DEC-2018
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
03:57 PM

MATTHEW S. LOPRESTI, Plaintiff,

vs.

STATE OF HAWAIʻI; SCOTT T. NAGO, as Chief Election Officer


for the State of Hawaiʻi; and OFFICE OF ELECTIONS,
State of Hawaiʻi, Defendants.

ORIGINAL PROCEEDING

ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Upon consideration of (1) the election complaint,


filed by plaintiff Matthew S. LoPresti (“LoPresti”) on November
26, 2018, (2) the statement by Sherrie J. Course, filed by
LoPresti on November 29, 2018, (3) the motion to dismiss
complaint or, in the alternative, motion for summary judgment,
filed by defendants State of Hawaiʻi, Chief Election Officer
Scott Nago and the Office of Elections on December 6, 2018,
(4) the respective supporting documents, and (5) the record in
this matter,1 it appears that the defendants have not disclosed
information regarding the margin of error for the electronic
vote counting machines, when applying the tabulation procedures
established by or in accordance to chapter 3-172 of the Hawaii

1
We note that the election contest for the Office of State Senate,
District 19 may not be certified until the disposition of this election
contest. See HRS § 11-156 (“If there is an election contest [the certificate
of election] shall be delivered only after a final determination in the
contest has been made and the time for an appeal has expired.”).
Administrative Rules, that were used in the November 6, 2018
general election and, more specifically, for the contest for the
Office of State Senate, District 19, and the procedures employed
to determine the intent of the voter in a close election without
a hand counting (such as when the ballot contains marginal
marks). Accordingly,
IT IS HEREBY ORDERED that, within three (3) days from
the date of this order, the defendants shall provide to
LoPresti, with a copy to this court, the following:
1. Information setting forth the margin of error for
the electronic vote counting machines, when applying the
tabulation procedures established by or in accordance to chapter
3-172 of the Hawaii Administrative Rules, that were used in the
November 6, 2018 general election.
2. Information setting forth the procedures as to
how the intent of the voter is ensured in a close election
without a hand count, such as when a ballot contains marginal
marks.
An unjustified failure to timely provide the specified
information shall be a basis for further action of this court.
DATED: Honolulu, Hawaiʻi, December 28, 2018.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson

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