Chair Rhoads, Vice Chair Har, members of the Judiciary Committee, the League of Women Voters of Hawaii strongly opposes SB 982, SD1 which would revise the vote requirement for the ratification of amendments to the Constitution of the State of Hawaii proposed by the State Legislature as opposed to those proposed by a constitutional convention.
The vote requirement for the legislature’s proposed amendments would be lower than that for amendments proposed by a constitutional convention. The immediate questions that come to mind are “Why should it be easier to ratify amendments offered by the Legislature? Are we to assume that more thought is given to constitutional amendments by legislators than by convention delegates?”
There are two methods by which Hawaii’s State’s constitution can be amended: the constitutional convention or the legislatively referred constitutional amendment. Amendment proposals using the legislative method are common because the legislature meets every year and any member can introduce an amendment. In the 2013 session there are at least seven such measures.
In the last thirty to forty years, constitutional conventions have seldom been approved by voters in the several states where the legislatures put the question on the ballot, or even in states where a call for convention is mandatory every ten fifteen or twenty years. So the most common way of amending the constitution is already through proposals by legislatures. This is true even in states where their constitutions need not just a few revisions but complete revisions.
This means that in Hawaii most of our amendments will be proposed by legislatures. So, the process of the legislature approving proposed amendments, the provisions for the education of the public on the proposed amendments, and the vote requirement for the ratification of these proposed amendments by the voters are all important.
The bill specifically proposes to count only “yes” and “no” votes tallied instead of counting all votes cast on the proposed amendment. Votes cast includes all yes and no votes as well as blank and spoiled ballots. The approach in this bill is based on the tiresome argument that those who left the ballot blank or spoiled the ballot should not be factored into the decision of whether a majority of voters approved the proposed amendment. This argument is inherently irrational. Voters who did not vote either “yes” or “no”
were certainly participating in the election; they left the ballot blank or spoiled the ballot because they were indifferent to the proposal, made an error marking their vote, or didn’t understand the proposed amendment.
In the last five general elections there were fourteen legislatively proposed amendments to the Constitution and about 15% of voters did not vote yes or no on the proposed amendment in each case.1
But the past does not always predict the future, and it is entirely possible that the number of persons not voting “yes” or “no” on an amendment would be higher than 15%, particularly given the extremely limited voter information provided for in this measure.
Section 3.2, line 11 attempts to address the prospect of having a very large percentage of blank or spoiled ballots by constructing a formula whereby the percentage of votes tallied compared with the votes cast must at least equal the percentage at the general elections held in the preceding ten years. But if it is really the legislature’s intent to make it easier for legislative proposals to amend the Constitution to pass, why not just lower the threshold for approval to 35% as it was before 1980, and be done with it?.
The League of Women Voters does not advocate lowering the approval threshold from 50% of votes cast. The change proposed in this bill could result in constitutional amendments being ratified by a “majority” that is less than the majority of voters participating in the general election. A simple example demonstrates that if a significant number of voters left the question blank or spoiled the vote, the proposed amendment could still be ratified.2 This violates the fundamental democratic principle of “majority rules,” so it would seem unfair to many voters, as it does to us.
Besides the flawed approach of “tallied” votes, the League is adamantly opposed to the process proposed in this bill for preparing the electorate to make a decision on the proposed amendment. Under the constitutional convention method of ratification, voter education is specifically required under the State Constitution before presenting the question to the electorate. However no voter education is required as part of the legislative amendment method outlined in this bill. In addition, mere publication of the proposed change is extremely limited. While the original version of the bill required that the proposed amendment
be posted on the Office of Elections website before the general election, this provision was eliminated in SD1. What preparation would be provided? Only this: “The proposed amendment shall be published once in each of four successive weeks in at least one newspaper of general circulation in each senatorial district where a newspaper is published.” This is a 1970’s media strategy for 21st century voters, ignoring the popularity of digital media like the Office of Elections website and other websites for obtaining voter information. Overall SB982, SD1 is an “information light” scheme.
In related testimony on House Bill 300 League already made clear our position on voter education for ballot and charter amendments, namely that the State Office of Elections should routinely provide voter education on these proposals. Each proposed change should be described in simple, everyday language. Additionally, “pros and cons” for each change should be presented in a factual, nonpartisan fashion.
The League of Women Voters firmly believe that if we treat each proposed amendment to the constitution seriously and carefully, being aware of all of the consequences of the change, the need to constantly amend this document should decrease until we decide one day, that it is time to review the whole document. Thank you for this opportunity to comment on this bill.
1 Testimony of the Attorney General on SB982, January 29, 2013.
2 Assume there were 500,000 voters in a general election and 23% (115,000 persons) left the ballot blank or spoiled the ballot. If 219,000 persons voted "yes" and 166,000 persons voted "no" using the votes "tallied" approach, the measure would pass with 57% approving. But if in fact there were only 219,000 "yes" votes of 500,000 voters participating, so only 44% of the voters approved the proposed amendment.