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Voting Requirements for a Constitutional Convention
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Voting Requirements for a Constitutional Convention
In the wake of the decision by the Hawaii State Supreme Court on the meaning of the voting requirement provision of the Constitution of the State of Hawaii (Article XVII, Section 2), President Jean Aoki wrote to several of our community and government leaders to solicit their opinions on what the voting requirement should be and why.
Responses were received from Jon M. Van Dyke and Randy Roth, both professors of law at the William S. Richardson School of Law, University of Hawaii; Richard S. Miller, professor emeritus of law, and chair, Honolulu Community Media Council; and Robert Rees, professor of political science, University of Hawaii.
The pertinent parts of Article XVII are as follows:
Section 2. The legislature may submit to the electorate at any general or special election the question, "Shall there be a convention to propose a revision of or amendment to the constitution?'
ELECTION OF DELEGATES
If a majority of the ballots cast upon such a question be in the affirmative, delegates to the convention shall be chosen at the next regular election.
The revision or amendment shall be effective only if approved at a general election by a majority of all the votes tallied upon the question, this majority constituting at least 50 percent of the total vote cast at the election or at a special election by a majority of all the votes tallied upon the question, this majority constituting at least 30 percent of the total number of registered voters.
Hawaii's original 1950 State Constitution established a procedure whereby the voters would be polled every ten years to determine if they wished to hold a constitutional convention. Pursuant to that procedure, conventions were held in 1968 and 1978 and important amendments were adopted. After the 1978 Con Con, a further amendment was passed that required future amendments to be adopted by a majority of all the votes cast at the election (and by at least 30 percent of the total number of registered voters). This amendment did not adjust the language governing the procedures for voting to call a Con Con, but the Hawaii Supreme Court nonetheless interpreted the language chosen in 1950 to require the same result-a majority vote of all the votes cast at the election, thus counting blank or spoiled ballots as "no" votes. No further amendment of this provision is needed unless this result is viewed as improper. Because the court's interpretation leads to a result that is consistent with the way votes are counted to determine if an amendment has been adopted, this result can be seen as a reasonable one, which recognizes the importance of the decision to call a constitutional convention and ensures that the voters truly want to hold such an event.
The language in Article XVII, Section 2, should nonetheless probably be changed in one important respect-to remove the reference to a "special election" and thus to require that the vote on whether to hold a constitutional convention be held only in a general election. Many more voters go to the polls in a general election than in a special election because more questions and election contests are at stake. If we are to be consistent in trying to ensure that a call for a constitutional convention is strongly favored, we must require that such a decision be made at a general election when the largest turnout can be expected. Otherwise, at a special election with a low turnout, the outcome could be determined by a small faction with a special interest different from the views of the electorate as a whole.
The final question is whether we need a constitutional convention at the present time. I feel that it is healthy for a community to examine its fundamental governing document on a regular basis and thus have supported the holding of a constitutional convention. But we also have on our political agenda the effort of the Hawaiian People, or Kanaka Maoli, to create a sovereign and autonomous nation to govern themselves and their lands and people. The positive result of the Native Hawaiian
Vote in 1996 and the continuing efforts of the Hawaiian people to find consensus indicates that we are closer to the time when a process will be in place to draft a governing document for the sovereign Nation of Hawaii. When that process is completed, the community as a whole will have to consider amendments to the state constitution concerning the recognition of the nation, the disposition of the ceded lands, the governing of the Hawaiian Home Lands and the Office of Hawaiian Affairs, and many other issues involving Hawaiian resources and affairs. It makes little sense to spend large sums of money now for a constitutional convention and then to have to spend similar amounts in the near future to address amendments related to the creation of the sovereign Nation of Hawaii. It seems preferable, therefore, to postpone the holding of a statewide convention until the Hawaiian people have their convention and determine their preferred future.
There is no need to amend Article XVII, Section 2. The Hawaii Supreme Court has already clarified the vote requirement in a very well-reasoned and impeccable opinion. The court noted that a constitutional convention should be held, as the constitution explicitly provides "if a majority of the ballots cast" favor a convention. After carefully reviewing the relevant history and case law, it then held that "ballots" mean the sheets upon which the question appears and not "yes" or "no" votes. The court said:
The supreme court in my view, was 100 percent correct. We do not need a constitutional amendment to change this provision. What we do need, however, is clear information provided to the voters, presumably by the Election Commission, about how the votes will be counted and about the different effects of throwing away or handing in a blank ballot.
Incidentally, Judge Ezra, in his recent opinion ordering a new vote on the question of whether we should have a new constitutional convention, did not in any way criticize the Hawaii Supreme Court's opinion.
For democracy to work properly, everyday citizens must feel a reasonable degree of control over the destiny of their community. For reasons that I don't completely understand, the public in Hawaii seems to feel more "out of control" than not. Perhaps this situation would be improved by making it relatively easy for the public to call a constitutional convention. Quite frankly, I worry about what might come out of a Con Con, but such a reaction is not necessarily a bad thing. My fears are likely to force me to be alert and to get involved. If a Con Con would do the same to enough others, I think we all would benefit.
I propose an amendment that Section 2 of Article XVII be eliminated in its entirety. One of the paradoxes and advantages of constitutional democracy is that it protects us from too much democracy.
Hawaii's constitution, however, is deficient when it comes to shielding us against the tyranny of the majority. In spite of some arcane arithmetical obstacles, it is possible for a simple majority or some barely greater proportion to call for a convention to propose constitutional amendments. These Con Con provisions reduce our constitution almost to the level of an ordinary statute.
The solution is to eliminate the Con Con and the misleading debate on how to count votes, and instead to reserve the amendment proposal procedure to the state legislature. This process requires a two-thirds vote of each house.
The elimination of the Con Con will remove three distinct threats to our liberty: (1) That a single-issue group will dominate a Con Con; (2) the inclination of a Con Con to make wholesale changes and to treat the constitution like a detailed statute instead of a bedrock principle; and, (3) the possibility that the amendments offered up by a populist convention might be ratified by an equally rabid electorate. This, of course, is precisely the eventuality that a constitution ought to inhibit.
[Editor's note: see "President's Message" for more on the legal status of the Con Con election.]