STAND. COM. REP. NO. 87

                                   Honolulu, Hawaii
                                                     , 1999

                                   RE:  S.R. No. 11
                                        S.D. 1




Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 1999
State of Hawaii

Sir:

     Your Committee on Judiciary, to which was referred S.R. No.
11 entitled:

     "SENATE RESOLUTION REQUESTING THAT A THOROUGH MANUAL RECOUNT
     OF THE 1998 GENERAL ELECTION RESULTS TAKE PLACE,"

begs leave to report as follows:

     The purpose of this resolution, as received by your
Committee, is to request a thorough manual recount of the 1998
general elections.

     Your Committee finds that the Chief Election Officer, in
consultation with the county clerks, determined that the
methodology for conducting state elections needed to be changed
for the 1998 elections due to both fiscal constraints and the
lack of available technology and staff to support the existing
punch-card voting  method.  Your Committee further finds that the
Chief Election Officer entered into a sole source contract with
Election Systems and Software (ES&S) to provide an electronic
voting methodology and process, including all equipment and
supplies necessary to conduct the primary and general elections.
Unfortunately, both voter confusion due to the new voting method
and machine malfunctions have been alleged to have caused
discrepancies in the general election results.  These
discrepancies resulted in one court challenge and, more
importantly, lack of voter confidence in our electoral process.


 
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     Your Committee notes that the Attorney General has opined
that existing law only allows the Supreme Court to order recounts
based upon a legal challenge filed by a candidate after an
election and within the statutory deadlines.  The Attorney
General has further opined that the Chief Election Officer, under
constitutional and statutory authority, may proceed with an
unofficial recount of the elections results, but there exists no
remedy in Hawaii law in the event that the results of an
unofficial recount differ from the certified results.

     Your Committee strongly believes that in order to restore
voter confidence in our electoral process, and to further
investigate the continued use of an electronic voting method, a
full, complete, and duly supervised audit of the 1998 general
election results should be conducted.  Your Committee further
believes that if the audit, which shall begin with an electronic
recount of all ballots cast, reveals discrepancies between the
1998 general election results and the electronic recount, further
manual recounts, to be determined by independent official
observers, shall also be conducted.  Additionally, when the
Legislature receives the audit report, if there are indications
of significant anomalies, then the Chief Election Officer should
consider conducting a further inquiry into the primary election
results. 

     Your Committee has amended this resolution by:

     (1)  Changing its title to urge a "full, complete, and duly
          supervised audit of the 1998 general election results";

     (2)  Clarifying that discrepancies resulting from a change
          in the voting methodology were not readily explained by
          the contractor, ES&S, nor the Chief Election Officer;

     (3)  Clarifying that the discrepancies could have resulted
          from machine error, malfunction, or both;

     (4)  Inserting a clause indicating that the contractor,
          ES&S, has agreed to pay all expenses for a complete
          audit of the 1998 general election, including an
          electronic recount of all votes and any manual
          recounts;

     (5)  Providing that the Chief Election Officer, with the
          assistance of ES&S and in the presence of independent
          official observers, conduct an audit of the 1998
          general election results;

 
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     (6)  Providing that the audit begin with the use of an
          infrared vote-counting machine to recount all ballots,
          including absentee ballots, and that the audit continue
          with manual recounts as determined by the Chief
          Election officer in consultation with the independent
          election observers;

     (7)  Providing that an independent oversight committee
          comprised of the State Auditor, a representative of the
          Federal Elections Commission, and a representative of
          the Elections Center be appointed to observe, review,
          assess, and report on the objectivity and accuracy of
          the audit process;

     (8)  Requiring that the Chief Election Officer submit to the
          legislature a report of the results of the audit no
          later than March 31, 1999;

     (9)  Requiring that the independent oversight committee
          submit to the legislature a report of its findings
          regarding the objectivity and accuracy of the audit no
          later than March 31, 1999; and

    (10)  Making technical, non-substantive changes for the
          purposes of clarity and style.

     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee concurs with the intent and purpose of S.R. No. 11, as
amended herein, and recommends its adoption in the form attached
hereto as S.R. No. 11, S.D. 1.

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,



                                   ______________________________
                                   AVERY B. CHUMBLEY, Co-Chair



                                   ______________________________
                                   MATTHEW M. MATSUNAGA, Co-Chair

 
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