The trend continues: Legislators love proposing constitutional amendments and hate giving citizens the chance to actually vote on them.

Twenty-eight constitutional amendments were proposed this session and 19 are already dead.

Last session, 31 were introduced and two approved. And that was an exceptional year for ConAms.

During the five years before that, 194 were proposed and zero were approved.

It’s not just the Legislature that prevents voters from having a say in how state government operates — beyond electing the leaders themselves.

There’s also the fact that Hawaiʻi is the only Western state that doesn’t allow statewide citizens initiatives, in which voters can go over the heads of the Legislature and propose their own ballot measures.

And then there are the folks in the black robes, otherwise known as Hawaiʻi Supreme Court justices.

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Scoring Easy Political Points

Constitutional amendments are easy to introduce and hard to pass, requiring two-third’s approval in the House and Senate or majority approval in both chambers for two consecutive sessions.

Lawmakers can score easy political points by putting forth popular amendments that have no chance of clearing the Legislature.

For instance, six of the already dead ConAms this session would have asked voters to impose term limits on legislators. None got even an initial committee hearing.

Some of the others would have asked voters to:

• Punish legislators in districts where the Native Hawaiian population is shrinking.
• Convert justices and judges to elective instead of appointive positions.
• Break up the statewide public school system into smaller districts.
• Require that the public school system be “thorough and efficient” (really).

The nine ConAms that are still alive would:

• Protect the right to obtain and use contraceptives.
• Enshrine the right to undergo abortions in addition to using contraceptives.
• Prohibit discrimination based on ethnicity, age, disability, religion, national ancestry, sexual orientation and gender identity.
• Increase the mandatory retirement age of judges to 75.
• Allow more time for the Senate to confirm judicial appointments.
• Base reapportionment on the resident population rather than the permanent resident population.
• Establish the right to clean water and air.
• Provide that the right of free speech does not include spending money to influence elections. (This would have no effect unless the U.S. Supreme Court decision in Citizens United was overturned.)
• Make the standard for voter approval of a ConAm more “yes” votes than “no” votes, without including spoiled, blank or over-votes that currently count as “no” votes. (More on this below.)

Since the next general election isn’t until November 2026, that year’s ballot would include not only any ConAms approved this session but also next session.

Maybe legislators will surprise us and dish up a couple. That’s what they did last year and voters approved both of them. One was a housekeeping measure to make the process of selecting District Court judges the same as for higher court judges.

The other seemed more substantive, removing the Legislature’s power to reserve marriage to only opposite-sex couples. But that will matter only if the U.S. Supreme Court reverses its 2014 ruling allowing same-sex marriage nationwide.

The last ConAm of real significance was placed on the ballot by the Legislature in 2018. It would have given the Legislature the power to impose property taxes to support public education. A couple of weeks before the election, the Supreme Court invalidated the ballot measure, ruling its wording was unclear.

What The Supreme Court Took Away

Another Supreme Court ruling, this one issued in 1997, continues to make voter approval of ConAms more difficult than it should be.

Justices overturned the apparent voter approval of a 1996 ConAm, ruling that it wasn’t enough that “yes” votes outnumbered “no” votes. Instead, the high court said, “yes” votes had to outnumber the combined ballots of people who: 1) voted “no,” 2) didn’t vote on the ConAm question at all, or 3) voted both “yes” and “no.”

Not only did the ruling set a precedent that still applies today, it also reversed voter approval of the mother of all ConAms.

Once every 10 years, the Hawaiʻi constitution requires a vote to decide if a constitutional convention should be held. The conventions are the ultimate opportunity for citizen delegates to propose their own ConAms instead of waiting on the Legislature.

When the last one was held in 1978, only two of the 102 delegates were incumbent legislators. 

The convention sent 34 ConAms to the ballot on subjects such as civil rights, government finances, taxes, education and natural resources. Voters approved all of them, although a few were later invalidated by the Supreme Court.

Most of the delegates were young political novices, and the 1978 convention launched a generation of political leaders.

The 1996 ConAm proposed to hold another constitutional convention, and that’s what was lost when the Supreme Court overturned what appeared to have been voter approval.

Under the court-ordered procedure that still considers blank ballots and over-votes to be “no” votes, Hawaiʻi has never had another ConCon.

Solutions Are Out There

So what are the prospects for giving Hawaiʻi voters more opportunities to weigh in on state issues?

They’ll get another shot at calling a constitutional convention in 2028 at the latest. Legislators have the power to put that on the ballot as soon as 2026. But they won’t.

Last time around, the powers that be coalesced and spent big money to frighten voters away from a ConCon. Think Big Unions, Big Business and Big Politics — all heavily invested in the status quo.

By 2028, voters may be more disgruntled and less prone to scare tactics.

In the meantime, there are a couple of promising measures still alive this session.

Senate Bill 1225 is a proposed ConAm that would address the Supreme Court decision that stacked the deck against ConAms. If it’s approved, Hawaiʻi would go back to just counting “yes” and “no” votes instead of considering blank votes and over-votes as being additional “no” votes.

The current system “is confusing and may lead to a result unintended by the voter,” states the measure authored by Sen. Karl Rhoads. 

It would only apply to ConAms introduced by the Legislature, not by delegates at a future constitutional convention. That’s disappointing and strange. Why should the counting protocol vary depending on who introduced the ConAm?

The Ways and Means Committee is slated to hold a decision-making hearing on Rhoads’ proposal Wednesday.

Sen. Chris Lee, meanwhile, has suggested a new method of including the electorate in spending decisions — sort of. While not a ConAm itself, Senate Bill 1031 would allow the Legislature to submit nonbinding referendum questions to voters regarding proposals to issue general obligation bonds.

Lawmakers could ignore the results of these advisory votes, but would be required to provide a written explanation as to why they’re thwarting the will of the people.

His bill still needs to make it through the Judiciary Committee but Rhoads has not yet scheduled it for a hearing.

Sen. Les Ihara resurrected his idea of creating a Citizens Assembly that would meet every four years to propose ConAms and law changes regarding elections, political campaigns, campaign finance, ethics, referendum, reapportionment, legislative process, and public access to information.

Sort of a constitutional convention lite, since the 25-member group would be sending its proposals to the Legislature rather than directly to the people.

But Senate Bill 1557 died without a hearing, providing further evidence that if voters really want more control over their state government, they’ll have to take it by voting for a full-fledged constitutional convention when they get the chance in 2028.