Legislators Take The Rare Step Of Putting 2 Questions For Voters On The November Ballot

Hawaii legislators did something unusual during their just-completed session: They actually decided to let voters decide two questions about the state constitution this fall.

One proposal would remove the Legislature’s “power to reserve marriage to opposite-sex couples,” which would only matter if the U.S. Supreme Court reversed its 2014 ruling allowing same-sex marriage nationwide.

The other would make the process for appointing and confirming District Court judges the same as for Supreme Court justices and other higher court judges.

This doesn’t mean legislators have lost their recent phobia for letting voters have a say, because these are the first constitutional amendments placed on the ballot since 2018.

That year marked the 26th consecutive biennial session when at least one constitutional amendment was sent to voters. Since then, hundreds have been proposed but rejected, including 68 in the just-completed biennium.

Clearly, asking voters to weigh in is out of vogue at the State Capitol.

Did our constitution suddenly become perfect? Of course not.

Did legislators become control freaks? Well …

Their unwillingness to let the people vote is exacerbated by the fact that Hawaii is the only Western state without a statewide citizens initiative process. No going over lawmakers’ heads in these islands.

The only public input of consequence is through candidate elections, and here again the powerbrokers hold most of the cards. Because incumbents enjoy the advantages of name recognition and significant campaign war chests, very few senators and representatives leave the Legislature involuntarily.

Lost Chances To Shake Up The System

Some of the proposed constitutional amendments that get shot down with such regularity at the Capitol would have shaken up this status quo.

Three bills in the just-completed biennium called for asking voters if they wanted to establish a statewide citizens initiative process. They were all proposed by Republicans, which guaranteed they would receive no committee hearing whatsoever in a Legislature dominated by Democrats.

But the fact is, citizens initiative proposals from reform-minded Democrats have fared equally poorly in past sessions.

Six bills in the last biennium proposed asking voters if they wanted term limits for legislators.

Only one got a committee hearing, and that was because House leaders promised hearings in 2023 for all the measures emanating from the so-called Foley Commission established to recommend reforms after two former legislators were convicted of accepting bribes.

And that one was promptly killed at hearing’s end with no public committee discussion.

Three bills proposed asking voters if they wanted a year-round Legislature, the idea being to transition from a rushed, chaotic 60-day session to a year-round operation governed by the Sunshine Law so that the people’s business is conducted in public.

Two were authored by Democrats and received committee hearings, and one even passed a committee before meeting its demise.

Other Proposals We Won’t Be Voting On

Here are a few of the other proposals that voters could have been considering this fall if legislators had been in the mood to ask them:

Reproductive freedom: Now that the U.S. Supreme Court has overturned the national right to abortion, three bills proposed asking voters if they wanted to establish reproductive rights in the state constitution. One passed the Senate but died in the House, while the other two received no hearing.

Judges’ mandatory retirement age: Asking voters to raise the maximum age from 70 to 75 seemed to have a real shot when one of three bills cleared both chambers. But neither the Senate president nor the House speaker appointed conferees to hammer out differences in conference committee.

Restructuring Department of Education: Four bills proposed to ask voters to break up the statewide school system into smaller districts and/or make Board of Education positions elective rather than appointed. All were authored by Republicans, but one of them was actually given a hearing anyway by the House Education Committee.

New tax option for counties: Six more bills would have given voters the chance to allow Hawaii’s four counties to use tax increment financing, which captures the increase in property taxes resulting from certain new development and diverts it to subsidize that development.

The Deck Is Stacked Against Amendments

Even if lawmakers hadn’t recently developed an apparent allergic reaction to letting voters decide issues, the fact is that it’s hard to pass a constitutional amendment in Hawaii.

First it takes a two-thirds majority vote in both chambers in a single session or two majority votes in both chambers in two consecutive sessions.

And that’s just to get it on the ballot.

Then the yes votes must not only outnumber the no votes but all the other ballots cast, including people who left the question blank or mistakenly voted both yes and no.

Two measures were proposed last session to change the law so that yes votes would only have to outnumber no votes when it comes to constitutional amendments.

But, you guessed it, those bills went nowhere.