“Shall the Board of Education be changed to a board appointed by the Governor, with the advice and consent of the Senate, as provided by law?”
If that section of the ballot is left blank, it will count as an automatic rejection of the proposed amendment — as if “no” were marked.
All this does not bode well for the amendment. On the one hand, lack of voter participation is one of the main arguments amendment supporters use to call for change in the first place. But voter apathy is the very thing that could kill the attempt at putting the board’s selection in others’ hands.
Voters seem increasingly disinterested in the board of education and who serves on it. Only 60 percent of Maui voters participated in this year’s primary election for their education board representative. On Oahu, 57 percent of possible votes for the island’s three at-large candidates were cast (based on the allowed three votes per voter).
Supporters of the amendment for weeks have been running television ads emphasizing that blank votes count as “no” votes.
So we were curious why blank ballots are automatically counted as negative votes. The short answer is: The Hawaii Constitution requires it. Here’s the exact wording:
“The revision or amendments 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 fifty per cent of the total vote cast at the election.” (Emphasis added)
That seems a little open to interpretation, so we called the Hawaii Legislative Reference Bureau. Head Research Librarian Karen Mau pointed us to a 1997 state Supreme Court case that dealt with the number of votes cast in a 1996 general election ballot measure. The court concluded in its ruling on Hawaii State AFL-CIO Vs. Yoshina that “‘ballots cast,’ within the meaning of article XVII, section 2 of the Hawaii Constitution, includes blank ballots and over votes.”
Hawaii seems to be in the minority of states that count blank ballots as “no” votes in the cases of constitutional amendments. But it’s not the only one, said Rob Richie, executive director of FairVote, a national elections think tank. He’s familiar with the practice mostly on an anecdotal level, he said.
“In Minnesota, where they have constitutional amendments proposed by the Legislature, they will basically say ‘we want an affirmative vote of everyone who was at the polls,'” he said. “It’s essentially saying that the state constitution isn’t something to mess with if a whole bunch of people don’t understand something and don’t vote on it at all.”
In practical terms, that makes it harder to pass amendments. Other states have voter turnout requirements for passing amendments.
“That’s part of the onus,” Richie said. “In cases like this, you’ve got to make people care if you want an amendment to pass.”
He said he would never think it was a good idea to have such stringent requirements for passing statutory changes, but “there is something about constitutional amendments — I can at least understand where it’s coming from.”
“It’s a bit of a check on the Legislature,” Richie said. Even if legislators put something on the ballot, he said, “They can’t slip something through — not that it’s easy in any sense, but in the case of amendments, they need to be taking action on things that people think are important.”
In short, it looks like the odds are stacked against the amendment.
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