PLAINTIFF’S NOTICE OF POTENTIAL FEDERAL CRIMES AND REQUEST FOR REFERRAL UNITED STATES DISTRICT COURT DISTRICT OF HAWAIʻI
PETER BERNEGGER, Plaintiff, v.
Case No. 1:25-cv-00482-JAO-RT
SCOTT T. NAGO, in his official capacity as Chief Elections Officer, MICHAEL CURTIS, et al., Defendants.
TO: THE HONORABLE JILL A. OTAKE UNITED STATES DISTRICT JUDGE: Plaintiff Peter Bernegger respectfully files this Notice to place before the Court information indicating possible federal felony violations relating to federal election administration, federal grant funding under the Help America Vote Act (HAVA), and federal recordkeeping and reporting obligations, and to request that the Court refer this matter to appropriate federal authorities for independent review. This, pursuant to his obligations of 18 U.S.C. § 4. “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.” Plaintiff does not ask this Court to adjudicate criminal liability or to administer elections. Plaintiff files this Notice to ensure that potential federal crimes
1
supported by documentary evidence are preserved in the record and referred to the entities charged by Congress with investigation and enforcement.
I. Core undisputed facts supported by the record A. The Federal Statutory Framework: 52 U.S.C. § 21112 (HAVA Section 402) establishes a critical condition for states receiving HAVA funding: "If a State receives any payment under a program under this chapter, the State shall be required to establish and maintain State-based administrative complaint procedures which meet the requirements of paragraph (2)." B. Hawaiʻi’s HAVA State Plan has not been updated since October 10, 2004. The Hawaiʻi Office of Elections website identifies only one State Plan: “October 10, 2004 – Hawaii State Plan for Help America Vote Act 2002 Implementation.” There is no published evidence of any amended or revised State Plan in the subsequent 21 years. C. The 2004 State Plan expressly admits noncompliance with multiple HAVA Title III requirements, repeatedly marking “Does Not Meet,” including but not limited to: 1) §301(a)(3)(A) (disability access / ADA); 2) §301(a)(3)(B) (accessible voting system in each polling place); 3) §302(a)–(b) (provisional voting and required postings); 4) §303(a)(1)(A) (state-administered, centralized voter registration list); 5) §402(a) and every §402(a)(2)(A)–(I) subsection (state-based administrative complaint procedure). D. HAVA §402 complaint procedures are an express condition of receiving HAVA funds. The 2004 Plan itself quotes this statutory condition while admitting noncompliance. Hawaiʻi has nevertheless received approximately $30+ million in federal HAVA funds from 2003 through at least FY 2025. E. A 2011 federal audit found Hawaiʻi “did not account for and expend HAVA funds in accordance with requirements.” In 2025, the Hawaiʻi Elections 2
Commission voted 7-2 to request a statewide audit following findings that included: -A 661-vote discrepancy between Kauaʻi County ballots collected and the State’s reported count in the 2024 general election; -No compliant ballot security logs or chain-of-custody records retained by Kauaʻi County; -A recommendation to reconsider the State’s voting model. -The Office of Elections formally refused to adjudicate a HAVA administrative complaint, asserting it had “no jurisdiction,” despite §402 being mandatory for any State receiving HAVA funds. -The State of Hawaii Elections Office reported 76,595 mail-in ballots for the County of Hawaii in the November 5, 2024 federal election. However, the county itself only reported 57,553 collected. A glaring discrepancy of 19,042 missing mail-in envelopes. The 57,553 documented envelopes derive from a) 27,912 envelopes from Places of Deposit (POD) and Voter Service Centers, b) 29,641 envelopes from USPS postal receipts (BRM). -The Commission has been investigating for over a year, and still no explanation has been brought forth. The County of Hawaii reported the postage to the US Postal Service of 57,553 pieces. Where I allege, the postage was not paid to the USPS for 19,042 mail pieces thus defrauding the federal government. -The County of Kauai has the same problem as the County of Hawaii. Documented envelopes collected were 25,622 (per chain-of-custody documents) for Kauai. Yet the State of Hawaii Elections Office official mail ballots reported came to 27,075. A discrepancy, ~1,453. I allege the USPS was not fully paid for ~1,453 pieces of mail. F. Chief Election Officer of the State of Hawaii, Scott Nago, and Attorney Jeffery Osterkamp, a Commissioner, have both stated each county runs their elections differently. This is a direct violation of HAVA, and thus not following HAVA mandatory requirements, yet the Office of Elections has accepted some $29.97 million in federal HAVA monies. Osterkamp in particular put this admission in writing in a 91-page report he wrote then filed with the Elections Commission. 3
G. Each of the four counties in turn have accepted federal HAVA monies over the years. Ranging from 2% to 8%, showing the vast bulk of the federal funds are kept by the Office of Elections. H. Counties are subject to HAVA requirements when they receive HAVA funds as subgrantees. The legal framework operates as follows: 1. State Responsibility for Subgrantee Compliance. According to the U.S. Election Assistance Commission "The State must follow its own laws and procedures regarding the distribution of grant funds when issuing a sub-grant, but must also assure that the subgrantee is aware of the limitations imposed by the Federal grant." Pe the U.S. Election Assistance Commission 2. The federal Election Assistance Commission (“EAC”) has made the State liable for Non-Compliance. Furthermore, the EAC will recoup any funds misspent by a local government from the State government. The same is true for State misspending the HAVA funds, or obtaining them fraudulently. The EAC has a claw back clause. 3. Counties as "Units of Local Government" in HAVA. Under 52 U.S.C. § 21004 (State Plan requirements), states must describe: "How the State will distribute and monitor the distribution of the requirements payment to units of local government or other entities in the State for carrying out the activities" Source: Legal Information Institute to meet Title III requirements. 4. County-Level HAVA Obligations, as Tara Gregory testified before the Elections Commission: "HAVA requires every state and county administering federal elections to preserve an auditable record of each ballot and to apply uniform, transparent procedures for handling and counting votes. If even one county fails to track those ballots properly, the entire state is out of compliance with federal election standards and subject to federal review. The county clerks: Hawaiʻi, Maui, Kauaʻi, and the City and County of Honolulu - each have a federal obligation to retain USPS documentation and provide it to the public upon request." 4
The counties have failed to retain election records of/from the 2024 federal election. They have failed to provide it to the public upon request. II. Potential federal felony violations implicated (for referral) H. Based on the above facts and the documents already in the record or Plaintiff’s possession, Plaintiff identifies the following potential federal felony categories for investigation, as alleged below. Plaintiff does not ask the Court to determine whether these crimes occurred. I. False statements to the federal government (18 U.S.C. § 1001) If Hawaiʻi, through the Office of Elections or its officials, made materially false statements or concealed material facts in applications, certifications, reports, or correspondence to the U.S. Election Assistance Commission (EAC) or other federal agencies regarding: -HAVA Title III compliance, -existence of §402 complaint procedures, -administration of the statewide voter registration system, -or eligibility for “requirements payments,” -such conduct may constitute violations of 18 U.S.C. § 1001. J. Criminal false claims and conspiracy (18 U.S.C. §§ 287 and 371) If Hawaiʻi presented claims for federal HAVA funds (including drawdowns, reimbursements, or payment requests) knowing that required conditions were not met, or while supporting those claims with false or misleading representations, such conduct may constitute criminal false claims (§ 287), and if undertaken by multiple actors, conspiracy (§ 371). K. Federal program theft / embezzlement (18 U.S.C. § 666) Hawaiʻi has received far more than $10,000 per year in federal benefits under HAVA. If an agent of the State embezzled, stole, obtained by fraud, or intentionally misapplied property valued at $5,000 or more under such programs, 18 U.S.C. § 666 may be implicated. L. Mail fraud and wire fraud (18 U.S.C. §§ 1341 and 1343) If the alleged scheme to obtain or retain federal HAVA funds involved: 5
-mailings (grant applications, certifications, reports, correspondence), or -electronic transmissions (online filings, emails, wire transfers), and -those communications contained material misrepresentations or omissions, -such conduct may constitute mail fraud and/or wire fraud. M. Obstruction and destruction or concealment of records (18 U.S.C. § 1519) If records relating to federal grants, audits, elections, ballot security, or chain of custody were destroyed, altered, or concealed with intent to impede federal oversight, audits, or investigations, 18 U.S.C. § 1519 may apply. N. Federal election-records crimes (52 U.S.C. §§ 20701–20703) Federal law requires retention and preservation for 22 months of all records and papers relating to federal elections. Willful failure to retain such records, or willful destruction, concealment, or alteration of them, constitutes a federal crime. Allegations regarding missing or non-compliant ballot security and chain-ofcustody records directly implicate these provisions.
III. Why referral is appropriate O. Plaintiff is not seeking criminal findings by this Court. However: 1) Hawaiʻi’s own State Plan admits noncompliance with mandatory funding conditions; 2) The Plan has never been updated despite two decades of continued federal funding; The State is automatically out of compliance; 3) Federal funds were accepted year after year; 4) A prior federal audit found misuse of HAVA funds; 5) Current findings raise fresh federal election-records concerns. These facts present a non-frivolous basis for referral to agencies with criminal and oversight jurisdiction. Hundreds of pages of evidence are available upon request.
6
IV. Narrow request Plaintiff respectfully requests only that the Court: a. Accept this Notice for filing, and b. If the Court deems appropriate, refer this matter and the relevant filings to: c. the United States Attorney for the District of Hawaiʻi, d. the U.S. Department of Justice (Public Integrity / Civil Rights Divisions), and/or e. the U.S. Election Assistance Commission Office of Inspector General, for independent review under the federal statutes identified above. Plaintiff seeks no other relief. Respectfully submitted,
DATED: December 17, 2025
_______________________________ /s/ PETER BERNEGGER
7