The question on the Nov. 6 general election ballot seems straightforward: “Shall there be a convention to propose a revision of or amendments to the Constitution?”

Less clear is what it will actually take to approve a constitutional convention. It won’t be enough for “yes” votes to outnumber “no” votes.

In fact, the “yes” votes will have to outnumber the combined ballots of people who: 1) vote “no,” 2) don’t vote on the ConCon question at all, or 3) vote both “yes” and “no.”

Early Voting 2018 Honolulu Hale polls wide. 4 aug 2018
Two constitutional questions will  face voters in the general election. If they cast ballots but leave the questions blank, they’ll essentially be voting “no.” Cory Lum/Civil Beat

“That’s what the case says,” said Elijah Yip, a Honolulu attorney who has studied the 1997 Hawaii Supreme Court decision that set this high bar for constitutional ballot questions.

The bottom line for those who cast ballots: Not voting on the ConCon question will have the effect of voting “no.” And the same goes for the proposed constitutional amendment that would authorize the state to tax certain real property to help pay for public education.

It wasn’t always this way.

Before 1996, ballots that left the once-a-decade ConCon question blank were not counted at all. “Yes” votes were compared to “no” votes, and the majority won.

It seemed like that would happen again in the ConCon election of 1996. In fact, according to a federal court opinion, the Hawaii Office of Elections went so far as to distribute an “information sheet” displayed at all voting places that explained what a “yes” and “no” vote meant without saying what happened with blank votes.

When “yes” votes outnumbered “no” votes in 1996, ConCon supporters assumed they had won. But a court challenge overturned the result.

In addition, shortly before the election, the office posted a fact sheet on its website saying that blank ballots wouldn’t be factored into the calculation. When they talked to a group called Citizens for a Constitutional Convention, elections officials reiterated that blank votes wouldn’t be a factor.

If that had been true, people favoring a ConCon would have prevailed in 1996 because there were 163,869 “yes” votes and 160,153 “no” votes.

But after the election, the Hawaii State AFL-CIO convinced the Hawaii Supreme Court to issue a declaratory judgment that the convention question had failed.

It took just over four months to resolve the issue. The day after the Nov. 5 election, Hawaii’s chief elections officer, Dwight Yoshina, asked Attorney General Margery Bronster for an opinion on how to calculate a majority for the purpose of the vote, and on Nov. 19, Bronster issued an opinion that the majority counted only “yes” and “no” ballots, not blank ones.

On Nov. 25, the union filed its complaint to the Supreme Court, relying on a state law that  gives the high court jurisdiction over election-related cases.

Central to the union’s case was that 45,245 voters had left the question blank and 90 had marked both “yes” and “no.” Factoring those into the total, the “yes” votes amounted to only about 44 percent, far short of a majority. In March 1997, the court rejected Bronster’s opinion and said blank votes should be part of the equation.

The decision turned on the language of the Hawaii Constitution, which says a constitutional convention is to be held if “a majority of the ballots cast upon such a question be in the affirmative.”

“Because the majority of the ballots cast on the question did not reflect affirmative votes, we order the Chief Election Officer, Defendant Dwayne D. Yoshina, to certify that the measure was rejected,” then-Chief Justice Ronald Moon wrote in a unanimous opinion.

The Hawaii Supreme Court created a much greater challenge for constitutional ballot questions with its 1997 ruling. 

The opinion didn’t mention the Elections Office’s prior practice or that the office had told the public that blank votes wouldn’t be counted.

Those issues were central to another lawsuit filed in U.S. District Court in Hawaii by a group of plaintiffs led by Mark Bennett, a Honolulu lawyer who later became attorney general and is now a judge on the 9th U.S. Circuit Court of Appeals. Bennett’s group filed suit in April 1997, three weeks after the Supreme Court’s opinion, alleging the newly adopted way of counting votes was such a departure from prior practices that it amounted to a violation of the U.S. Constitution.

In July, U.S. District Judge David Ezra granted Bennett’s motion for summary judgment, saying the vote had been unfair and that the Hawaii court’s approach was an unforeseeable departure from prior practices and contradicted what the election office had told the public. The defendants appealed to the 9th U.S. Circuit Court of Appeals.

While the appeal was pending, the Legislature moved to put the ConCon question on the ballot again in November 1998.

Before the election was held, in March 1998, the 9th Circuit overturned Ezra’s decision, ruling that the Supreme Court’s after-the-fact change in the method for counting votes amounted to, at worst, “a garden variety election irregularity,” and not a “pervasive error that undermines the integrity of the vote.”

On Nov. 3, 1998, the ConCon question failed overwhelmingly, receiving only 34 percent support under the new calculating system. The result essentially rendered moot any appeal Bennett’s group might have made to the U.S. Supreme Court.

The method of calculating a majority has been in place ever since, creating an uphill climb for citizens who want to call a ConCon, said J.H. Snider, a historian who has established a website with information about constitutional conventions in Hawaii.

Snider said that voters often leave a ballot question blank if they believe they don’t know enough about an issue to make an informed choice.

“It’s a pretty ironclad rule that if people are fearful to make a decision, they’ll leave it blank,” he said.

A ConCon question on the 2008 ballot also was defeated, receiving just 35 percent support.

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