It’s starting to look a lot like fascism.

In 2020 Chief Elections Officer Scott Nago violated Hawaii State law when he conducted the post-election pre-certification audits and did not randomly audit 10% of precincts, claiming the ballots could not be sorted by precinct. This was brought up repeatedly in Elections Commission meetings and never remedied.

Experiencing not so much as even a slap on the wrist for the 2020 maladministration, Nago worked around the randomly selected 10% of precincts 2020 debacle by using ballot images for the 2022 audits, thus breaking the law AGAIN.

Patriots, beyond fed up with the Wild West style lawlessness of the Elections Office, filed lawsuits against Nago for not auditing our elections in accordance with Hawaii Revised Statutes (HRS).

Ralph Cushnie’s 2022 lawsuit had a lot of back and forth on definitions of “marksense” and “mechanical tabulation” (this is relevant when you see the changes that HB132 makes on definitions) and was ultimately tossed out.

The 2022 Hawaii Republican Party lawsuit calls out Nago for violating HRS 16-42 for using ballot images in lieu of paper ballots for the 2022 audits. This lawsuit is still active (and being used as an excuse to deny FOIA requests for CVRs, but that’s another story).

Now we see that the “remedy” is to rewrite the laws they broke, just as they did in 2021 when the Oahu County Clerk was called out for putting drop boxes out on Oahu earlier than the law allowed.

Here is the current law that Nago broke in 2020 and again in 2022:

Hawaii Revised Statute 16-42 Electronic Voting Requirements pertains to post-election pre-certification audits.
(1) The electronic voting system is subject to inspection, audit, and experimental testing, by qualified observers, before and after the election, pursuant to administrative rules adopted by the chief election officer under chapter 91;
(3) The chief election officer conducts a post-election, pre-certification audit of a random sample of not less than ten per cent of the precincts employing the electronic voting system, to verify that the electronic tallies generated by the system in those precincts equal hand tallies of the paper ballots generated by the system in those precincts;

Nago: Breaks laws

Citizens: Call him out on broken laws and file lawsuits

Nago: Ignores the concerned citizens and CHANGES THE LAWS!!

I’ll go through the pertinent points: additions to the original law are the underlined text. Blatant punches in the gut to election integrity are in bold.

Here is where they redefine terms so they can weasel their way out of future lawsuits with illogical definitions and gobbledygook that no one can understand:

SECTION 1. Section 16-41, Hawaii Revised Statutes, is amended to read as follows:

"§16-41 Definitions.

"Direct recording electronic voting system" means a system that generates a voter verifiable paper audit trail and utilizes electronic components, which are logically and physically integrated into a single unit, for the functions of ballot presentation, vote capture, vote recording, and tabulation.

"Electronic voting system" means the method of recording votes which are counted by automatic tabulating equipment. The term includes, but is not limited to, the mechanical tabulation system, including a marksense ballot voting system, that involves the tabulation of paper ballots, and the direct recording electronic voting system that generates a voter verifiable paper audit trail.

"Marksense ballot voting system" means a mechanical tabulation system using paper ballots and optical scanning, digital scanning, or similar technology equipment, for which:

(1) The voter manually records votes by marking the appropriate voting position on the ballot, with a prescribed marking device, in the manner instructed by the chief election officer; and

(2) The marks on the ballots are subsequently read by the optical scan, digital scan, or similar technology device, in conformance with the specifications of the voting system selected by the chief election officer.

"Mechanical tabulation system" means an automatic tabulation system, including a marksense ballot voting system, that tabulates paper ballots. The term does not include a direct recording electronic voting system.

This is where they really go all out:

(3) The chief election officer conducts a post-election, pre-certification audit of [~~a random sample of~~] not less than ten per cent of the precincts [~~employing the electronic voting system~~], to verify that the [~~electronic tallies generated by~~] results from the system [~~in those precincts~~] with respect to a selected contest or ballot question equal [~~hand tallies~~] a tally of the [~~paper~~] ballots [~~generated by the system in those precincts; and~~] or voter verifiable paper audit trails;

(4) The audit may be conducted with scanned images of the ballots or voter verifiable paper audit trails and involve a contest or ballot question. To the extent technology permits other forms of duplication or reproduction, the technology likewise may be used in lieu of the physical paper ballots or voter verifiable paper audit trails;…

This train wreck goes on and on, here is the HB132 full text.

The Takeaway:

HB132:

· Changes definitions to cover the Office of Elections in future lawsuits

· Removes the requirement to audit paper ballots

· Removes the requirement to select precincts randomly

· Allows the Chief Elections Officer to choose only one race or measure to “audit”

Nago is using HB132 to make everything he did illegally in the 2020 and 2022 audits legal.

But it goes deeper than that.

Using paper ballots for audits and randomly selecting precincts for audit are considered best practices for post-election audits by several non-partisan federal election organizations.

This is from the US Election Assistance Commission (emphasis is mine):

EAC 2020 Post-Election Audits:

Post-Election Audit Best Practices:

…” a state’s chief election official or local election official randomly selects the designated percentage of total precincts”…

Usage of Ballot Images in Post-Election Audits:

…” ballot image audits have raised concerns among some election integrity and security experts because the review is only of digital images and not the official paper record.”

This is from the EAC Election Audits Across the United States document:

“In general, a state’s chief election official, an independent audit board, or local election official randomly selects the precincts, devices, or ballots subject to the audit, according to a pre-determined formula.”

“Traditional post-election audits are usually conducted by hand tallying a sample of paper records and comparing the results to electronic reports produced by voting systems…

To create efficiencies in the process, some states allow the audit to be conducted electronically.

For example, in Hawaii, the chief election official and a bipartisan team have the option to retabulate 10% of precincts with their voting system as a part of their post-election audit…

Although automated audits can reduce costs and improve the efficiency of post-election audits, there are important factors election officials consider when using this audit method. Using the same equipment to retabulate ballots may not reveal programming or tabulation errors in the voting system.”

Even the EAC calls out Hawaii for current audit practices before the Nago 2023 HB132 rewrite, which takes us further still from audit best practices.

There’s more:

National Association of Secretaries of State (NASS)

2021 NASS Task Force on Vote Verification: Post-election Audit Recommendations

Post-Election Audits Overall

“Post-election audits also generally take place in a designated percentage of randomly selected precincts, tabulators and/or ballots after the election.”

Hawaii’s Lt. Governor, Sylvia Luke, is a member of NASS. I hope she is aware of HB132, which completely goes against audit best practices endorsed by NASS, the EAC, and the Brennan Center for Justice.

HB132 was written in response to corrective actions pursued by those fighting for election integrity and has nothing to do with following national standards on audit best practices, which should be what our election laws reflect.

Laws are not meant to be written to allow past unlawful behavior to be changed to lawful.

HB132 goes to the floor on Thursday, February 2, 2023 at 2 pm HST.

If you are a Hawaii resident, I urge you to make an account at https://capitol.hawaii.gov/and click on OPPOSE for HB132. It’s that easy.

"Ours is a government of liberty, by, through and under the law. No man is above it, and no man is below it."

- President Theodore Roosevelt

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