Your vote matters.
Until a tie results. Or, actually, with the thanks of a tie.
When enough voters vote (or fail to vote), ties sometimes happen. When ties occur in statewide elections, it falls on Hawai‘i’s Chief Election Officer to settle the score.
The current officer, Scott Nago, publicly drew the names of candidates locked in tied votes from a box on the afternoon of Saturday, August 15. It was posted publicly on the State Office of Elections’ YouTube page.
Through Nago, candidates were selected by a drawing (in this case). The basis of this authority lies in Hawai‘i Revised Statutes, or state law. “In case of the failure of an election by reason of the equality of vote between two or more candidates,” Section 11-157 of state law finds, “the tie shall be decided by the chief election officer or clerk in the case of county elections by lot.”
For Republican Senator Kurt Fevella, this was the mode of defeat. Former State Representative Bob McDermott had tied with Fevella by a vote of 1,212-1,212. McDermott won the drawing. He will now be the Republican nominee for a State Senate seat in ‘Ewa.
For Republican Representative Kanani Souza, this was also the mode of defeat. Souza tied with Sheila Medeiros, who had tied with Souza by a vote of 842-842. Medeiros won the drawing too. She will be the Republican nominee for that contested House seat in Kapolei.
In at least two instances, we know now that an election could be decided by a coin or the drawing of a name from a box, not a vote. Maybe next time.
The Reason This Happened
The basis of this system can be traced, at least in statehood, to a 1970 law that provided that candidates subject to a tie would need to agree “in a signed statement to the use of a lot.”
The system placed faith in a candidate’s ability to find an amicable solution to a tie. In democracy, however, passion can overrun such stability. When bitter rivals fail to agree, chaos ensues.
That happened in 1988. In the case of that year’s primary election cycle, Democratic Rep. Romy Cachola faced former Democratic Representative Connie Chun in a race for a State House seat in the communities of Kapālama and Foster Village. In a primary election on September 17, each candidate received 1,795 votes.
“Oddly enough,” Jerry Burris of the Advertiser observed, “the tie could have been avoided if every voter in the 39th had been paying close attention. Some 173 persons cast blank ballots and four punched a puka for both Cachola and Chun.”
Neither candidate could agree on the method to settle a tie. A previous court ruling had declined to weigh in on the question of how to settle a tie where both candidates refused to compromise. The then-Lieutenant Governor, Ben Cayetano, also knew that the law provided little direction (lieutenant governors used to oversee elections).
The House seat would lie vacant if no candidate was selected, leaving then-Governor John Waihe‘e with the political football of filling the ‘vacancy’ that resulted from this political impasse. Since there were no other candidates from another political party in that seat, it seemed reasonable to have both Cachola and Chun jump into a rematch in the general election of Tuesday, November 2, 1988.
Given the complex nature of this race, the election itself was more of an advisory exercise. Cachola prevailed over Chun by a vote of 2,917-2,840. On November 9, 1988, Waihe‘e made an appointment. He picked Rep. Romy Cachola over Chun.
That led to a 1990 law which spelled out the exact procedures for settling a tie. However, given that these procedures heavily relied on in-person voting and precinct results, they were phased-out by Act 136 of the 2019 legislative session. The law quietly removed the recount procedures in the event of the tie, and fully vested the authority in the “chief election officer” or the county elections clerk (in the event of a county election).
This is where history throws us into the present predicament. Unlike 1988, there will be no run-off elections between Souza and Medeiros or McDermott and Fevella. This is due, in part, to the simplicity of the 2019 law.
There is also no convoluted procedure to recount the votes, nor will a court arbitrate any disagreement where the two candidates cannot settle on a method to break a tie.
After 4,108 votes were verified and two ties faced confirmation, an election officer functions as a referee and picks two winners. There is no debate. It is settled.
And that’s a republican form of government. If we want to refine it, the 2027 legislative session (with perhaps Medeiros and/or McDermott as new members) will be the arena for debate.
Perry Arrasmith can be reached at hello@perryarrasmith.com.
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