NATALIE IWASA PHYLLIS TAKARA DANNY LOUI CHELSEA LOUI SARA CHINEN JOHN OTTO JUANITA LIU REBECCA GARDNER ORION IWASA SHAWN CAVACO OLIVIA MANAYAN LEONARD PARESA MICHELLE RIOS CHRIS CHWASTYK LORRAINE MANAYAN WINSTON WELCH NANCI KREIDMAN ROBERT FINLEY CALVIN HARA JEANNINE JOHNSON THOMAS COOPER DONNA HOSHIDE DOMINIC MARQUEZ GAREN DEWEESE BRADFORD COLE KEVIN IMANAKA YVETTE IMANAKA GUY MATSUNAGA BART DAME KATHLEEN STANLEY JOEY MANAHAN RICHARD SING ZOE SING ERIC HAMAKAWA PETER SAVASTA TAMMIE TORRES ANGELA CORREA PEI NOLA LEWIS GAIL AWAYA FUJII WAIPAKAWIWAO OLE PARKER v. SCOTT NAGO CHIEF ELECTIONS OFFICER STATE OF HAWAI OFFICE OF ELECTIONS CHADD KADOTA TREVOR OZAWA TARA MALIA GREGORY (2026)

CONCURRING AND DISSENTING OPINION OF McKENNA, ACTING C.J., IN WHICH CIRCUIT JUDGE SOONG JOINS

Summary

I join the findings of fact in Justice Ginoza's majority opinion.

I also join conclusions of law 1 through 23.

This includes the majority's holding that under the circumstances of this case, the declaratory judgment action should have been dismissed by the Circuit Court. Hawai‘i Revised Statute (“HRS”) § 12-8 allows the City Clerk to preliminarily address candidate eligibility. Under the circumstances, after the City Clerk preliminarily determined Waters was eligible, then a post-election challenge for cause under HRS § 11-172 and § 11-173.5 was the proper procedural mechanism for Ozawa to challenge Waters’ eligibility. This statutory scheme provides a “special form of remedy” for candidate eligibility challenges. Therefore, the Circuit Court should not have entertained a HRS § 632-1 declaratory relief lawsuit just before the City's first special election held in conjunction with the August 8, 2026 primary election.

But I respectfully dissent from the majority's conclusions of law and judgment holding that Waters is not eligible and that Ozawa's and Gregory's names are to be placed on the 2026 second special election held in conjunction with the November 2026 general election for the City's District IV councilmember seat. I would hold that Waters is eligible and the names of Ozawa and Waters should be placed on the ballot.

Interpretation of Revised Charter §§ 3-102 and 3-105

This case requires this court to construe Revised Charter Sections 3-102 and 3-105, which provide as follows:

Section 3-102. Number, Election and Terms of Office of Councilmembers —

The council shall consist of nine members. One member shall be elected from each of the nine districts hereinafter provided. Except as provided in Section 16-122, the regular terms of office of councilmembers shall be four years beginning at twelve o'clock meridian on the second day of January following their election. The terms shall be staggered in accordance with Section 16-122. No person shall be elected to the office of councilmember for more than two consecutive four-year terms.

Section 3-105. Vacancy in Office —

A vacancy in the office of any councilmember shall be filled in the following manner:

(a) If the unexpired term is less than one year, the remaining members of the council shall elect a successor with requisite qualifications to fill the vacancy for the unexpired term. Vacancies shall be filled only at a meeting of the council after reasonable notice of intent to fill the vacancy has been given to all remaining members of the council by the presiding officer. Should the council fail to fill any vacancy within thirty days after its occurrence, the mayor shall appoint a successor to fill the vacancy for the unexpired term.

(b) If the unexpired term is for one year or more, the vacancy shall be filled by special election to be called by the council within ten days and to be held within one hundred twenty days after the occurrence of the vacancy. At such time, the electors of the district shall elect a successor to fill the vacancy for the remainder of the term. If any special or general election is to be held in the city after thirty days and within one hundred eighty days after the occurrence of the vacancy, then the election shall be held in conjunction with such other election. Pending the election, the remaining members of the council shall make a temporary appointment with requisite qualifications to fill the vacancy until a successor is duly elected. The vacancy shall be filled only at a meeting of the council after reasonable notice of intent to fill the vacancy has been given to all remaining members of the council by the presiding officer. Should the council fail to fill the vacancy within thirty days after its occurrence, the mayor shall make the temporary appointment to fill the vacancy until a successor is duly elected.

(Emphases added.)

Interpretations of these county charter provisions require us to give effect to their “plain and obvious meaning.” See Citizens for Equitable & Responsible Gov't v. Cnty. of Hawaii, 108 Hawai‘i 318, 323, 120 P.3d 217, 222 (2005).

The majority indicates that there are two types of councilmember terms relevant to this case: “four-year terms” under Section 3-102 and “vacancy terms” under 3-105. The majority rules that on April 13, 2019, Waters was elected to a “four-year term” under Section 3-102. The majority also rules that Section 3-105, governing vacancies in the office of councilmembers, does not apply to Waters’ first term because a “vacancy” is not created when a successful HRS § 174.5 November election challenge invalidates those election results and requires a new special election.

Thus, the majority says Waters is ineligible because he was previously elected to “two consecutive four-year terms” under Section 3-102.

But Waters was not “elected to a four-year term” on April 13, 2019.

This court ordered a new election on January 25, 2019 in our Waters v. Nago opinion. The results of this election were not certified until May 6, 2019 due to statutory deadlines allowing for election challenges.

The majority says that Waters filled a term under Section 3-102 after the April 13, 2019 election. But Section 3-102 says that “the regular terms of office of councilmembers shall be four years beginning at twelve o'clock meridian on the second day of January following their election.” Waters was elected on April 13, 2019. He was not elected to a term starting on January 2, 2019. Applying the plain and obvious language of Section 3-102, he was not elected to a four-year term “following [his] election.” Under Section 3-102, his term would have had to start on January 2, 2019. Therefore, Section 3-102's provision stating that “[n]o person shall be elected to the office of councilmember for more than two consecutive four-year terms,” could not have been and was not triggered by Waters’ April 13, 2019 election. The majority's ruling that Waters’ term started on January 2, 2019, despite there having been no District IV Councilmember on that date, is very difficult to understand.

And the argument that an elected councilmember could claim that the councilmember was not elected to a four-year term if a swearing-in is delayed after January 2nd is a smokescreen. The issue under Section 3-102 is whether a councilmember was “elected” to a four-year term, not whether the council member “served” a total of four years. When a councilmember's election is certified after a November election, that councilmember has been “elected to a four-year term” even if the councilmember cannot be sworn in until after January 2nd. Waters, however, was not and could not have been elected to a four-year term in the “new election” conducted on April 13, 2019.

Waters was first elected on April 13, 2019 to a term that could only start after that election result was certified, which did not happen until May 6, 2019. So the earliest date his initial “term” could be deemed to have started is May 6, 2019. That term ended on January 2, 2023. It was not a four-year term.

Waters was elected to his first four-year term in November 2022 and began serving that term on January 2, 2023 and will complete that term on January 2, 2027. As Waters has only been elected to one four-year term, based on the plain and obvious meaning of Revised Charter Section 3-102, he is eligible for election to another four-year term.

Also, according to the majority, Section 3-105 was not triggered because it can only apply when a sitting or elected councilmember leaves office or is unable to serve and the newly elected person is a “successor.” So if a sitting councilmember is no longer able to serve, Section 3-105 is triggered. Or if a person elected councilmember in the November election dies before being sworn in on January 2nd, necessitating a special election, Section 3-105 is triggered because the newly elected person is a “successor.” But, according to the majority, because Waters was elected in a special election after invalidation of November election results, he cannot be a “successor” under Section 3-105 and his term was not a “vacancy term” under that section.

I disagree. The majority misinterprets the terms “vacancy” and “successor.”

Section 3-105 is triggered when there is “[a] vacancy in the office of any councilmember.” The Charter does not limit how a “vacancy” can occur. Black's Law Dictionary 1868 (12th ed. 2024) defines “vacancy” as “[t]he quality state, or condition of being unoccupied, esp., in reference to an office[.]” According to Mink v. Pua, 68 Haw. 263, 264, 711 P.2d 723, 724 (1985), Section 3-105(b) is a general provision providing for the filling of any vacancy. The opinion provides examples of how a vacancy can occur, such as “death, disability, resignation, recall, impeachment or because the council[member] has moved out of [their] district[,]” but states that the key is the word “successor,” no matter how a vacancy occurs. 68 Haw. at 264-65, 711 P.2d at 724-25. In other words, Mink recognizes that there are other ways in which a “vacancy” can occur.

A “vacancy” can occur when election results are invalidated, like this court's invalidation of the November 2018 District IV Councilmember election results. Black's Law Dictionary 654 (12th ed. 2024) defines “special election” as “occur[ring] in an interim between general elections, usu. to fill a sudden vacancy in office but sometimes to cure an irregularity that has occurred in the general election.” (Emphasis added.); see also, Woods v. Mills, 503 S.W.2d 706, 709-10 (Ky. 1974) (holding that a county sheriff's office was “vacant” when the court voided election results). Thus, neither the language of Section 3-105, our caselaw, or the law of other states say that a “vacancy” does not occur when election results are invalidated.

Thus, a “vacancy” in the office of District IV Councilmember was created when this court invalidated the November 2018 election results on January 25, 2019.

The majority also unnecessarily restricts the definition of “successor.” Mink quotes the Black's Law Dictionary (5th ed. 1979) definition of “successor” and goes on to quote Corpus Juris Secundum's description of “successor,” as follows:

One that succeeds or follows; one who takes the place that another has left, and sustains the like part or character; one who takes the place of another by succession.

In 83 C.J.S. Successor at 770 (1953), it is stated:

The term “successor” is variously defined as meaning he that followeth, or cometh in another's place; one that succeeds or follows; one who follows another into a position; one who succeeds or takes the place of another; one who succeeds to the rights or place of another; one who takes the place of another by succession; one who takes the place of a predecessor or preceding thing; one who takes the place which another has left, and sustains the like part or character; also, a person who has been appointed or elected to some office after another person.

68 Haw. at 265, 711 P.2d at 725 (emphases added).

Thus, the term “successor” under Section 3-105 is not limited to a councilmember who replaces another councilmember who has died, become disabled, resigned, has been recalled or impeaches, or who has moved out of their district. It also includes a “successor” to a councilmember whose term has expired.

The plain language of Section 3-105 dictates how a “vacancy in the office of any councilmember” is to be filled. This court's January 25, 2019 opinion in Waters v. Nago created a vacancy in the office of District IV councilmember. Subsection (b) of Section 3-105 calls for a special election if the vacancy is for more than one year and also allows the City Council to appoint a temporary replacement. The City Council recognized the vacancy, called for a special election, and appointed Michael Formby as a temporary replacement to represent the residents of District IV.

A new special election after a successful challenge to November election results cannot be completed and certified by January 2nd. The majority focuses on the voters’ rejection of a proposed 2016 Charter amendment that proposed to allow councilmembers to serve three consecutive four-year terms. But the majority does not focus on the fact that voters also approved a Charter amendment in 2016 that amended Section 3-105 to allow the City Council to appoint temporary replacements pending special elections for vacancies in the office of a councilmember.

With respect to the importance of the Charter provisions adopted by the people of the City and County of Honolulu, the majority opinion's introductory section highlights that “this court did not order a new election under Revised Charter Section 3-105 for filling a vacancy.” This is because HRS § 11-174.5 states that “[i]f the judgment should be that the ․ election was invalid, a certified copy thereof shall be filed with the governor, and the governor shall duly call a new election to be held not later than one hundred twenty days after the judgment is filed.” This court's judgment was in consonance with this statutory requirement.

Governor Ige's proclamation pursuant to this judgment merely stated that “there will be a special election for the Councilmember for District IV ․ to be conducted by the City Clerk and to be held not later than one hundred twenty days after the judgment was filed.” This is because under HRS § 11-91(a), “[i]n elections involving only county offices the clerk shall issue the proclamation.” Therefore, it was the City's responsibility to issue the proclamation and conduct the election of this City official.

This raises an important point not argued by the parties that is actually fatal to the majority's analysis.

Article VIII, Section 2 of the Hawai‘i Constitution provides as follows:

Section 2. Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.

Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions.

A law may qualify as a general law even though it is inapplicable to one or more counties by reason of the provisions of this section.

This provision of our Constitution provides that a county has the power to frame and adopt a charter for its own self-governance within such limits and under such procedures as may be provided by general law. The state “general law,” HRS § 11-174.5, required the form of judgment to be issued by this court and required that the governor call a new election to be held not later than one hundred days after this court's judgment.

And state “general law” HRS § 11-91(a) required that the City Clerk issue the proclamation. But the City's Revised Charter, promulgated in accordance with Article VIII, Section 2, governed the City election.

In this regard, Revised Charter Section 13-116 generally governs “City Elections.” Subsection (1) generally provides that all city elective officers are to be elected by nonpartisan special elections. It goes on to state:

․ Except as otherwise provided in this charter, such special elections shall be held in conjunction with the primary and general elections of the applicable year; a special election held in conjunction with the primary election shall be designated the first special election and a special election held in conjunction with the general election shall be designated the second special election. In the case of the council, such special elections shall be held in 2002 and every second year thereafter․

Subsection (2) then goes on to dictate what names appear on the first and second special elections — the latter, if necessary.

But Section 13-116 clearly provides that “[e]xcept as otherwise provided in this Charter, city special elections shall be conducted with the state general and primary elections.” The Charter contains no provisions governing what type of “special election” is called when a “second special election” result is invalidated. And for a councilmember election, the only applicable Charter provision “otherwise provided in this Charter” to conduct a special election under these circumstances is Section 3-105(b). This made eminent sense, because the position was “vacant.”

Also, there was no state statutory “general law” limiting the effect of this Charter provision. Therefore, pursuant to Article VIII, Section 2, this Charter provision controlled. Through Resolution 19-12, on February 4, 2019, the City Council properly exercised its power and authority to call the requisite special election under Section 3-105(b) because there was a vacancy.

In addition to the authority of the people of the City and County of Honolulu under Article VIII, Section 2 of our Constitution, the Preamble to the Revised Charter itself proclaims as follows:

We, the people of the City and County of Honolulu, accepting responsibility to seek to achieve in our time that righteousness by which the life of our land is preserved and to encourage and enable our people to participate in their governance, do hereby adopt this Charter of the City and County of Honolulu.

The majority rules that Section 3-105 does not apply when a councilmember's office becomes vacant due to the need to conduct a special election after a successful challenge of November election results. Respectfully, I believe the majority is simply wrong. There was a vacancy. And this Charter provision was the only one that could govern this election. Further, this Charter provision is not “limited” under Article VIII, Section 2 by any state statutory “general law.” This court's duty is to apply the law as written, unless it is unconstitutional or absurd. Section 3-105(b) is neither. It clearly applies under these circumstances.

The majority's ruling means that, under these circumstances, the people of the City cannot utilize a Charter provision actually approved by the voters. Not only does the majority deem inapplicable Section 3-105(b), the only Charter provision that could have governed the April 13, 2019 election, it also effectively rules that after a successful challenge to November election results, the City Council cannot appoint a temporary replacement councilmember for the many months it will take for a special election to be conducted and its results certified. In other words, the majority's ruling will now allow a councilmember district to remain unrepresented pending a special election and its certification. Thus, by rejecting the applicability of Section 3-105(b) under these circumstances, which could arise again in the future, the majority denies the people of Honolulu a measure they adopted “to participate in their governance.”

The majority's ruling also calls into question the legitimacy of the temporary appointment of Formby and the actions he took as District IV councilmember.

As reflected in the City Council's Resolution 19-12, the City Council called a special election under Section 3-105(b) because there was a vacancy. Moreover, it was the only possibly applicable Charter provision under which this election could have been conducted. Because a vacancy had occurred, the City Council correctly interpreted its own governing documents.

The Revised Charter does not limit councilmembers to serving only up to eight years

It may be important to clarify any possible misunderstanding regarding City councilmember term limits. Although Honolulu voters rejected a proposal to allow councilmembers to be elected to three, instead of two, consecutive four-year terms in 2016, the intent of Section 3-102 was not to limit a councilmember to serving only up to eight years total. The 1992 amendment setting term the two consecutive full-term limit was explicitly explained as providing that, even after serving two consecutive full terms, a councilmember could be elected again after “sitting out a term.”

The Charter Commission's brochure on the 1992 proposed amendment explained the term limit proposal as follows:

2. Should the number of terms an individual can serve as Councilmember be limited to two full consecutive four year terms?

Present: No limit on terms.

If proposal passes: Person may serve no more than two consecutive terms. Person may serve more than two terms if “sits out” a term.

City Charter Commission, City and County of Honolulu, CHARTER ISSUES Will affect everyone's future, at PDF 2, available at https://www4.honolulu.gov/docushare/dsweb/Get/Document-186414/1992_1992%20charter%20issues%20proposals%20ballot%20bookl et_hcc.pdf (emphasis added).

Therefore, there was no intent to limit councilmembers to serving a maximum of eight years. After the 1992 amendments became effective in January 1993, Honolulu councilmembers have been elected to terms other than two consecutive four-year terms. For example, Ikaika Anderson was elected to the City Council in a 2009 special election to replace councilmember Barbara Marshall and was sworn in on May 27, 2009. He served the remainder of councilmember Barbara Marshall's term, until January 2, 2013. He was then reelected to two full consecutive four-year terms in 2012 and 2016. He left office on September 23, 2020. He therefore served more than eleven years as a councilmember.

If there is doubt or ambiguity as to Waters’ eligibility, principles underlying representative democracy require that they be resolved in favor of eligibility

I would rule that Revised Charter Section 3-105 clearly controls and that Waters is eligible because he has not previously been “elected to two consecutive four-year terms.”

But even if there is an ambiguity, based on the constitutional rights of voters to select their representatives and of candidates to access the ballot, which are rights critical to our representative democracy, the ambiguity should be interpreted in favor of Waters’ eligibility.

Article I, Section I of the Hawai‘i Constitution provides, “All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority.”

Article I, Section 8 enshrines our right to vote. Hicks v. 2021 Hawai‘i Reapportionment Comm'n, 151 Hawai‘i 234, 255, 511 P.3d 216, 237(2022) (Wilson, J., dissenting)(“The Hawai‘i Constitution enshrines the right to vote in article I, section 8 (‘No citizen shall be disfranchised, or deprived of any right or privileges secured to other citizens, unless by the law of the land’) and article II, section 1 (‘Every citizen of the United States who shall have attained the age of eighteen years, have been a resident of this State not less than one year next preceding the election and be a voter registered as provided by law, shall be qualified to vote in any state or local election [ ]’) as well as through the adoption of the United States Constitution, and its protections of the same.”))

As recognized by Justice Acoba in his dissent in Clark v. Arakaki, 118 Hawai‘i 355, 371 n.5, 191 P.3d 176, 192 n.5 (2008) (Acoba, J., dissenting):

“The right to run for elective office and right to vote for candidates running for such office uphold a fundamental principle of our representative democracy which is, in Alexander Hamilton's words, quoted by Mr. Chief Justice Warren, ‘that the people should choose whom they please to govern them.’ ” (Quoting Powell v. McCormack, 395 U.S. 486, 547 [ ] (1969).)

And in Akizaki v. Fong, 51 Haw. 354, 356, 461 P.2d 222, 224 (1969), this court stated:

The fundamental interest to be protected here is that of the people of the Fifteenth Representative District in choosing whomever they please to represent them in the House of Representatives. The right to vote is perhaps the most basic and fundamental of all the rights guaranteed by our democratic form of government․

To effectuate the right to vote as well as the right to run for elective office, various courts have ruled that an ambiguity regarding candidate eligibility must be resolved in favor of placing the candidate on the ballot.

For example, the Supreme Court of Alaska holds that even when established principles of statutory interpretation suggest a candidate is ineligible, when both interpretations regarding eligibility are reasonable, the presumption in favor of ballot access compels the “reasonably possible” interpretation that the candidate is eligible for reelection. Alaska Democratic Party v. Beecher, 572 P.3d 556, 566 (Alaska 2025).

The District Court of Appeals of Florida, Third District, summarized its Supreme Court's opinion in Ervin v. Collins, 85 So.2d 852 (Fla. 1956) as standing for the propositions that (1) to hold one ineligible to run for office where neither the Constitution nor the statute does so in express terms is contrary to every democratic precept; (2) moreover, if there is doubt as to the eligibility of the candidate, under every accepted rule of interpretation, the doubt or ambiguity must be resolved in favor of eligibility. City of Miami Beach v. Richard, 173 So.2d 480, 482 (Fla. Dist. Ct. App. 1965).

Illinois recognizes that “access to a place on the ballot is a substantial right not lightly to be denied[,]” Welch v. Johnson, 588 N.E.2d 1119, 1126 (Ill. 1992) and that promoting liberal ballot access requires that all doubts be resolved in favor of a candidate's eligibility. McGuire v. Nogaj, 496 N.E.2d 1037, 1039 (Ill. App. Ct. 1986).

A Louisiana Court of Appeals has stated that “laws governing the conduct of elections should be liberally interpreted so as to promote rather than defeat candidacy” and that “[t]he burden of proof is on the party contesting it.” Wilson v. Butler, 513 So.2d 304, 307 (La. Ct. App.1987).

Also, Professor Richard Hasen researches the substantive canon of statutory interpretation under which courts liberally construe election statutes so as to favor enfranchisement of the voter and to maximize voter choice; he dubs this “the Democracy Canon.” See Richard L. Hasen, The Democracy Canon, 62 Stanford L. Rev. 69 (2010). He provides the following state court examples:

1. Owens v. State ex rel. Jennett, 64 Tex. 500, 509 (Tex. 1885):

Where the Supreme Court of Texas recognized that “[a]ll statutes tending to limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor.”

2. Anchorage v. Mjos, 179 P.3d 941, 943, 943 n.1, 944 (Alaska 2008):

In our view there is a presumption in favor of candidate eligibility. In cases where there is a statutory ambiguity as to whether or not a candidate is eligible to run for office, the statute should be construed in favor of eligibility, so long as it may be reasonably so read. [․]

Statutes dealing with the right of voters to choose public officials and the right of citizens to aspire to and hold public office, should receive a liberal construction in favor of assuring the right to exercise freedom of choice in selecting public officials and also the right to aspire to and hold public office.

[․]

“Term” here clearly refers to a full term, even though the word “full” is not included. It is possible that a drafter focusing on subsection 4.02(a) might think that “term” or “terms” wherever used later would necessarily refer to full terms and that the use of the modifier “full” was not necessary. Under this interpretation, use of the modifier “full” to describe the necessary interval that must pass before a three-term Assembly member could run again might be explained as merely an exercise in caution rather than an intended signal that the earlier usage of the word “terms” was meant to include partial terms.”

3. Carr v. Thomas, 586 P.2d 622, 626-27 (Alaska 1978) (quoting Sanchez v. Bravo, 251 S.W.2d 935, 938 (Tex. Civ. App. 1952)):

The right of the citizen to cast his ballot and thus participate in the selection of those who control his government is one of the fundamental prerogatives of citizenship and should not be impaired or destroyed by strained statutory constructions. If in the interests of the purity of the ballot the vote of one not morally at fault is to be declared invalid, the Legislature must say so in clear and unmistakable terms.

4. State ex rel. Beck v. Hummel, 80 N.E.2d 899, 905-06 (Ohio 1948):

All election statutes should be liberally interpreted in favor of the right to vote according to one's belief or free choice, for that right is a part of the very warp and woof of the American ideal and it is a right protected by both the constitutions of the United States and of the state.

5. Catania v. Haberle, 588 A.2d 374, 379 (N.J. 1991):

Our only response is that this Court has traditionally given a liberal interpretation to that law, “liberal” in the sense of construing it to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day․Obviously, there will be cases in which provisions must be interpreted strictly, mandatorily, for in some cases it will be apparent that that interpretation serves important state interests, including orderly electoral processes. But those cases must be decided on their own facts, under the law involved. This Court has never announced that time limitations in election statutes should be construed to bar candidates from the ballot when that makes no sense and when it is obviously not the Legislature's intent. There are states that have such rules, but New Jersey is not one of them.

62 Stanford L. Rev. at 71, 84 n.66, 87 n.84, 98 n.138, 98 n.139.

Respectfully, the majority's decision determining Waters ineligible is not only erroneous as a matter of law, it violates these principles of representative democracy.

Conclusion

Finally, this court has the power “[t]o take such other steps as may be necessary to carry into full effect the powers which are or shall be given to it by law or for the promotion of justice in matters pending before it.” HRS § 602-5(a)(6).

What would have happened if the Circuit Court had not ruled on Waters’ eligibility on June 27, 2026, which we unanimously agree should not have happened? If the challenge to Waters’ eligibility had been properly brought as a post-election challenge, and the election results were quite different, would we have upheld the “Democracy Canon”? We will never know.

At bottom, Waters was elected to a vacancy term under Revised Charter Section 3-105(b) on April 13, 2019. He has therefore not been elected to two consecutive four-year terms under Section 3-102.

For all these reasons, I would rule that Waters is eligible and that Waters’ name should appear along with Ozawa's as a candidate for District IV Councilmember for the Honolulu special election to be held in conjunction with the State general election.

DATED: Honolulu, Hawai‘i, August 28, 2026.

Sabrina S. McKenna

Michael K. Soong