On Friday, a First Circuit Court judge is scheduled to consider expediting a hearing on a request to block the ballot question aimed at funding Hawaii schools.

Judge Jeff Crabtree needs to act expeditiously on the motion for injunction from the state’s four counties. With less than two months before the Nov. 6 general election, voters need to know whether the Legislature drafted an “improperly proposed, misleading, and deceptive” ballot question, as the counties allege, in placing the question of the constitutional amendment before voters.

One problem is that the counties, led by Honolulu, waited until September to challenge legislation that was approved four months ago. In fact, several mayors and council members testified in opposition as the so-called con am worked its way through the 2018 Hawaii Legislature.

Still, the idea of taxing investment properties is widely supported. Only one state senator voted against the final version of the bill while none in the state House opposed it — even the anti-tax minority leader Andria Tupola voted in favor, albeit “with reservations.”

Kaahumanu Elementary School ELL classes in the school library.
Students study at Kaahumanu Elementary School. Voters need to make sure they understand what they are voting on when it comes to a constitutional amendment to fund schools via property taxes. Cory Lum/Civil Beat/2018

While Tupola, now the Republican nominee for governor, is today on record opposing the tax, she does say, “I believe the people should have the ability to decide on this issue. Many other states use property tax to fund public schools.”

Tupola’s Democratic opponent, Gov. David Ige, says he will be voting “yes” on the measure.

Of course, that will depend on it getting on the ballot. And in this regard, the counties do raise legitimate concerns about the con am question.

For one, the question, as it currently, reads — “Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?” — does not use the word “tax.” Given that there currently exists a surcharge on the state’s general excise tax and that the transient accommodations tax has been increased to help pay for Honolulu rail, voters might well be confused about what exactly they are voting for or against on the con am.

Nor does the ballot question make clear that the Legislature would be given a power that it does not currently have: the power to tax property, which is currently the provenance of the counties and their primary source of revenue, as it has been for 40 years.

“Investment property” is not defined in the ballot question, either — for example, homes valued at more than $1 million or perhaps $2 million. The counties allege that all types of real property — say, a shopping center or a high rise office tower — could conceivably be taxed under the proposed con am.

“Property classifications such as affordable housing and agriculture could fall under that category, in addition to the non-owner-occupied residential class, which already carries the highest property tax rate in the state,” West Hawaii Today reported Wednesday.

Says Honolulu Corporation Counsel Donna Leong: “The city believes it is important that the ballot question must be clear so that the voters are aware of the consequences of their vote.”

Judge Crabtree has the authority to pull the ballot question. It is not clear to us, however, that a state court could force elections officials to reword the proposed con am. That would seem to be the purview of the legislative branch, not the judicial.

Ultimately, the Legislature may have to rewrite the flawed bill to clear up the uncertainties and ambiguities — especially when it comes to setting the exact amount of the surcharge and precisely which properties can be taxed.

There are few people in Hawaii who would disagree that our public K-12 schools, teachers and staff need our kokua. We have the only statewide school system in the nation.

But a new state tax law could complicate Honolulu’s budget situation, which is already hampered by the rail project in addition to the usual responsibilities for city services and infrastructure. 
While the surcharge wouldn’t take money away from the four counties, it could certainly make it more difficult for them to ever increase their revenue. Their complaint notes that revenues derived from real property taxation for the counties totaled $1.2 billion in the current fiscal year, or about 85 percent of all general funds.

In Hawaii County there are estimates that property owners could pay an extra $75 million a year if the con am passes.

This is a big deal. Let’s do it right. And let’s make sure voters know what they are voting for, or against.

If fixing the ballot question can’t be done in special session before Nov. 6, then the matter should be put off until January when the regular session convenes. The next election is in 2020.

And if this is to happen, the Legislature should next time ensure that an investment property tax bill to fund schools also goes through the money committees in both chambers — something that was not the case with the bill in question and was rightly singled out in the counties’ complaint.

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