[et_pb_section bb_built=”1″ fullwidth=”on” specialty=”off” _builder_version=”3.0.86″ next_background_color=”#000000″ global_module=”145″][et_pb_fullwidth_header global_parent=”145″ _builder_version=”3.0.89″ text_orientation=”center” header_fullscreen=”on” header_scroll_down=”on” image_orientation=”center” background_layout=”light” content_orientation=”center” custom_button_two=”off” button_two_icon_placement=”right” custom_button_one=”off” button_one_icon_placement=”right” title_font=”|700|||||||” subhead_text_align=”center” subhead_font=”|700|||||||” background_image=”https:\/\/hawaii.concon.info\/wp-content\/uploads\/2017\/07\/HawaiiStateCapitol.jpg” background_color=”rgba(255, 255, 255, 0)” button_one_text_size__hover_enabled=”off” button_one_text_size__hover=”null” button_two_text_size__hover_enabled=”off” button_two_text_size__hover=”null” button_one_text_color__hover_enabled=”off” button_one_text_color__hover=”null” button_two_text_color__hover_enabled=”off” button_two_text_color__hover=”null” button_one_border_width__hover_enabled=”off” button_one_border_width__hover=”null” button_two_border_width__hover_enabled=”off” button_two_border_width__hover=”null” button_one_border_color__hover_enabled=”off” button_one_border_color__hover=”null” button_two_border_color__hover_enabled=”off” button_two_border_color__hover=”null” button_one_border_radius__hover_enabled=”off” button_one_border_radius__hover=”null” button_two_border_radius__hover_enabled=”off” button_two_border_radius__hover=”null” button_one_letter_spacing__hover_enabled=”off” button_one_letter_spacing__hover=”null” button_two_letter_spacing__hover_enabled=”off” button_two_letter_spacing__hover=”null” button_one_bg_color__hover_enabled=”off” button_one_bg_color__hover=”null” button_two_bg_color__hover_enabled=”off” button_two_bg_color__hover=”null”]<\/p>\n
[\/et_pb_fullwidth_header][et_pb_fullwidth_post_title global_parent=”145″ _builder_version=”3.17.5″ categories=”off” comments=”off” featured_image=”off” disabled_on=”on|on|on” disabled=”on” \/][\/et_pb_section][et_pb_section bb_built=”1″ prev_background_color=”#000000″][et_pb_row][et_pb_column type=”1_4″][\/et_pb_column][et_pb_column type=”1_2″][et_pb_text _builder_version=”3.17.5″]<\/p>\n
More people voted \u201cyes\u201d than \u201cno,\u201d but the Hawaii Supreme Court ruled that ballots left blank on the question were additional \u201cno\u201d votes.<\/strong><\/p>\n Hawaii\u2019s Constitution mandates that once a decade, next on Nov. 6, the people of Hawaii be granted the right to call a state constitutional convention to propose democratic reforms for popular ratification.\u00a0\u00a0<\/span><\/p>\n Hawaii\u2019s framers included this decennial mandate to secure the people\u2019s most fundamental political right: to reform their government \u2014 even in the face of the Legislature\u2019s opposition.<\/span><\/p>\n But what type of majority should be used to determine whether the people have called a convention? In 1996, a majority of those voting on the referendum, an \u201cordinary\u201d majority, approved calling a convention. Hawaii\u2019s Office of Elections affirmed that the referendum was approved based on an opinion issued by Hawaii\u2019s attorney general, Hawaii statute, past practice, and the Office of Elections\u2019 own ballot guidance prior to the 1996 election.<\/span><\/p>\n But state legislative leaders and unions, which had opposed calling a convention, disagreed. The AFL-CIO sued, arguing that non-votes on the question among those who cast ballots should be counted as \u201cno\u201d votes \u2014 an \u201cextraordinary\u201d majority.<\/span><\/p>\n The case went to Hawaii\u2019s Supreme Court, which ruled in favor of the AFL-CIO. A federal court subsequently overturned part of the Hawaii court\u2019s opinion, ruling that the election should be redone. But a federal appeals court overruled the lower federal court\u2019s ruling.<\/span><\/p>\n Hawaii\u2019s Legislature then passed a bill to redo the election, thus eliminating the risk that the U.S. Supreme Court would rule on appeal that the convention referendum had passed. At the subsequent election, with the opposition vastly outspending supporters, the referendum was unambiguously defeated.<\/span><\/p>\n The Law<\/span><\/strong><\/p>\n What is the law? Both the plaintiffs and defendants argued that the text of Hawaii\u2019s Constitution unambiguously favored their own interpretation. But the defendants sought to prove too much: they only needed to prove the language\u2019s ambiguity.<\/span><\/p>\n As it turns out, ambiguously phrased majority denominator referendum requirements, like Hawaii\u2019s, have been common in American constitutional, statutory and regulatory legal history. Indeed, prior to the Civil War, they were the norm. Even today, they are widespread in state constitutions and ubiquitous in popular and political speech.<\/span><\/p>\n Fueling this propensity for ambiguity is not only garden-variety intellectual sloppiness, but political self-interest. Politicians seek to portray themselves publicly as representing a majority of the people and thus above politics, but winning requires focusing on a small majority denominator (a \u201cmajority of the people voting\u201d). Vague majority statements finesse this PR dilemma.<\/span><\/p>\n Barring compelling evidence to the contrary, legislatures and courts have traditionally interpreted such ambiguity as unambiguously referring to an ordinary majority.<\/span><\/p>\n The Politics<\/span><\/strong><\/p>\n Bolstering this interpretative tendency has been the Legislature\u2019s self-interest: Legislators want their own proposals to pass.<\/span><\/p>\n Even in the relatively rare cases when majority language opposing a legislature\u2019s self-interest has been unambiguous, courts have generally acceded to the legislature\u2019s gimmicks to make an extraordinary majority function as an ordinary one. These gimmicks include making a referendum a special election, placing it on a separate ballot, and making the default ballot choice for a non-vote be a \u201cyes\u201d vote.<\/span><\/p>\n The specific language used in Hawaii\u2019s Constitution is: \u201cmajority of the ballots cast upon such question.\u201d Hawaii\u2019s Supreme Court argued that the plain meaning of this text was \u201cclear and unambiguous.\u201d But its convoluted reasoning to arrive at this conclusion in the face of competing authorities and Hawaii precedent demonstrated its claim\u2019s tenuousness. As a Hawaii State Bar Association newsletter would later argue, the Supreme Court\u2019s opinion \u201cwas both logically flawed and intellectually disingenuous.\u201d<\/span><\/p>\n \u00a0<\/span>The First Amendment Issue<\/span><\/strong><\/p>\n From a First Amendment perspective, the greatest outrage of the Hawaii Supreme Court\u2019s decision \u2014 as statutorily implemented in 2000 by the Legislature \u2014 is its implicit claim that the framers and ratifiers of Hawaii\u2019s 1959 statehood Constitution intended a larger majority to call a constitutional convention than to ratify a convention\u2019s proposals. As Russell Suzuki, Hawaii\u2019s current attorney general and then deputy attorney general,\u00a0wrote<\/span><\/a>\u00a0to the Office of Elections: \u201cthe calculation of a majority for the convening of a constitutional convention was intended by our framers to be different from and less stringent than the calculation of a majority for the ratification of amendments proposed by a convention.\u201d<\/span><\/p>\n This type of relationship between an agenda-setting and lawmaking majority was in keeping with traditional American democratic norms.<\/span>\u00a0For example, authoritative manuals of democratic procedure, such as Robert\u2019s Rules of Order, never endorse the type of inverse relationship<\/span>\u00a0endorsed by Hawaii\u2019s Supreme Court. None of America\u2019s 236 state constitutional conventions since 1776 explicitly endorsed such a relationship. America\u2019s federal Constitution amendment process lacks such a relationship. And in the 19 U.S. states with the popular constitutional initiative \u2014 the primary alternative legislative bypass mechanism in America \u2014 none require more than a 15 percent majority to place a constitutional amendment on the ballot.<\/span><\/p>\n Conclusion<\/span><\/strong><\/p>\n In its shoddy legal reasoning driven by political considerations, the Hawaii Supreme Court\u2019s constitutional convention decision was analogous to the U.S. Supreme Court\u2019s infamous Bush v. Gore decision that settled the 2000 U.S. presidential election. In this case, the court\u2019s unacknowledged bias wasn\u2019t partisan; it was careerist, as the judges had an acute conflict of interest because they are reappointed by a judicial nominating commission that is controlled by state legislative leaders who have been as viscerally opposed to calling state constitutional conventions as to passing state legislative term limits. To paraphrase Upton Sinclair, \u201cIt is difficult to get a judge to understand something, when his salary depends on his not understanding it.\u201d<\/span><\/p>\n Given the Hawaii Supreme Court\u2019s conflict of interest, a legal remedy will most likely have to come from a federal court. I suggest focusing on the First Amendment abomination of making the majority required to call a convention larger than the original majority required to ratify its proposals.<\/span><\/p>\n Legal scholars and political scientists have often observed that constitutions are mere parchment barriers unless the people are able and willing to fight for their rights. These rights include the people\u2019s right to reform their government in the face of a legislature\u2019s opposition.<\/span><\/p>\n Hawaiians were unjustly deprived of a constitutional convention they fairly voted for in 1996. We must never allow this gross injustice to happen again.<\/span><\/p>\n Source:<\/strong> Snider, J.H.,\u00a0State Constitutional Convention Was Hijacked In \u201996 \u2014 It May Happen Again<\/a>,\u00a0Civil Beat<\/em>, April 30, 2018. A substantially more detailed version of the same op-ed can be found at\u00a0Con-Con: The People v. Hawaii Supreme Court<\/a>,\u00a0Hawai\u2019i Free Press<\/em>, April 30, 2018.<\/p>\n [\/et_pb_text][\/et_pb_column][et_pb_column type=”1_4″][\/et_pb_column][\/et_pb_row][\/et_pb_section]<\/p>\n","protected":false},"excerpt":{"rendered":" Published in Civil Beat<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"on","_et_pb_old_content":" More people voted \u201cyes\u201d than \u201cno,\u201d but the Hawaii Supreme Court ruled that ballots left blank on the question were additional \u201cno\u201d votes.<\/strong><\/p> Hawaii\u2019s Constitution mandates that once a decade, next on Nov. 6, the people of Hawaii be granted the right to call a state constitutional convention to propose democratic reforms for popular ratification.\u00a0\u00a0<\/span><\/p> Hawaii\u2019s framers included this decennial mandate to secure the people\u2019s most fundamental political right: to reform their government \u2014 even in the face of the Legislature\u2019s opposition.<\/span><\/p> But what type of majority should be used to determine whether the people have called a convention? In 1996, a majority of those voting on the referendum, an \u201cordinary\u201d majority, approved calling a convention. Hawaii\u2019s Office of Elections affirmed that the referendum was approved based on an opinion issued by Hawaii\u2019s attorney general, Hawaii statute, past practice, and the Office of Elections\u2019 own ballot guidance prior to the 1996 election.<\/span><\/p> But state legislative leaders and unions, which had opposed calling a convention, disagreed. The AFL-CIO sued, arguing that non-votes on the question among those who cast ballots should be counted as \u201cno\u201d votes \u2014 an \u201cextraordinary\u201d majority.<\/span><\/p> The case went to Hawaii\u2019s Supreme Court, which ruled in favor of the AFL-CIO. A federal court subsequently overturned part of the Hawaii court\u2019s opinion, ruling that the election should be redone. But a federal appeals court overruled the lower federal court\u2019s ruling.<\/span><\/p> Hawaii\u2019s Legislature then passed a bill to redo the election, thus eliminating the risk that the U.S. Supreme Court would rule on appeal that the convention referendum had passed. At the subsequent election, with the opposition vastly outspending supporters, the referendum was unambiguously defeated.<\/span><\/p> What is the law? Both the plaintiffs and defendants argued that the text of Hawaii\u2019s Constitution unambiguously favored their own interpretation. But the defendants sought to prove too much: they only needed to prove the language\u2019s ambiguity.<\/span><\/p> As it turns out, ambiguously phrased majority denominator referendum requirements, like Hawaii\u2019s, have been common in American constitutional, statutory and regulatory legal history. Indeed, prior to the Civil War, they were the norm. Even today, they are widespread in state constitutions and ubiquitous in popular and political speech.<\/span><\/p> Fueling this propensity for ambiguity is not only garden-variety intellectual sloppiness, but political self-interest. Politicians seek to portray themselves publicly as representing a majority of the people and thus above politics, but winning requires focusing on a small majority denominator (a \u201cmajority of the people voting\u201d). Vague majority statements finesse this PR dilemma.<\/span><\/p> Barring compelling evidence to the contrary, legislatures and courts have traditionally interpreted such ambiguity as unambiguously referring to an ordinary majority.<\/span><\/p> Bolstering this interpretative tendency has been the Legislature\u2019s self-interest: Legislators want their own proposals to pass.<\/span><\/p> Even in the relatively rare cases when majority language opposing a legislature\u2019s self-interest has been unambiguous, courts have generally acceded to the legislature\u2019s gimmicks to make an extraordinary majority function as an ordinary one. These gimmicks include making a referendum a special election, placing it on a separate ballot, and making the default ballot choice for a non-vote be a \u201cyes\u201d vote.<\/span><\/p> The specific language used in Hawaii\u2019s Constitution is: \u201cmajority of the ballots cast upon such question.\u201d Hawaii\u2019s Supreme Court argued that the plain meaning of this text was \u201cclear and unambiguous.\u201d But its convoluted reasoning to arrive at this conclusion in the face of competing authorities and Hawaii precedent demonstrated its claim\u2019s tenuousness. As a Hawaii State Bar Association newsletter would later argue, the Supreme Court\u2019s opinion \u201cwas both logically flawed and intellectually disingenuous.\u201d<\/span><\/p> From a First Amendment perspective, the greatest outrage of the Hawaii Supreme Court\u2019s decision \u2014 as statutorily implemented in 2000 by the Legislature \u2014 is its implicit claim that the framers and ratifiers of Hawaii\u2019s 1959 statehood Constitution intended a larger majority to call a constitutional convention than to ratify a convention\u2019s proposals. As Russell Suzuki, Hawaii\u2019s current attorney general and then deputy attorney general,\u00a0wrote<\/span><\/a>\u00a0to the Office of Elections: \u201cthe calculation of a majority for the convening of a constitutional convention was intended by our framers to be different from and less stringent than the calculation of a majority for the ratification of amendments proposed by a convention.\u201d<\/span><\/p> This type of relationship between an agenda-setting and lawmaking majority was in keeping with traditional American democratic norms.<\/span>\u00a0For example, authoritative manuals of democratic procedure, such as Robert\u2019s Rules of Order, never endorse the type of inverse relationship<\/span>\u00a0endorsed by Hawaii\u2019s Supreme Court. None of America\u2019s 236 state constitutional conventions since 1776 explicitly endorsed such a relationship. America\u2019s federal Constitution amendment process lacks such a relationship. And in the 19 U.S. states with the popular constitutional initiative \u2014 the primary alternative legislative bypass mechanism in America \u2014 none require more than a 15 percent majority to place a constitutional amendment on the ballot.<\/span><\/p> In its shoddy legal reasoning driven by political considerations, the Hawaii Supreme Court\u2019s constitutional convention decision was analogous to the U.S. Supreme Court\u2019s infamous Bush v. Gore decision that settled the 2000 U.S. presidential election. In this case, the court\u2019s unacknowledged bias wasn\u2019t partisan; it was careerist, as the judges had an acute conflict of interest because they are reappointed by a judicial nominating commission that is controlled by state legislative leaders who have been as viscerally opposed to calling state constitutional conventions as to passing state legislative term limits. To paraphrase Upton Sinclair, \u201cIt is difficult to get a judge to understand something, when his salary depends on his not understanding it.\u201d<\/span><\/p> Given the Hawaii Supreme Court\u2019s conflict of interest, a legal remedy will most likely have to come from a federal court. I suggest focusing on the First Amendment abomination of making the majority required to call a convention larger than the original majority required to ratify its proposals.<\/span><\/p> Legal scholars and political scientists have often observed that constitutions are mere parchment barriers unless the people are able and willing to fight for their rights. These rights include the people\u2019s right to reform their government in the face of a legislature\u2019s opposition.<\/span><\/p> Hawaiians were unjustly deprived of a constitutional convention they fairly voted for in 1996. We must never allow this gross injustice to happen again.<\/span><\/p> Source:<\/strong> Snider, J.H.,\u00a0State Constitutional Convention Was Hijacked In \u201996 \u2014 It May Happen Again<\/a>,\u00a0Civil Beat<\/em>, April 30, 2018. A substantially more detailed version of the same op-ed can be found at\u00a0Con-Con: The People v. Hawaii Supreme Court<\/a>,\u00a0Hawai\u2019i Free Press<\/em>, April 30, 2018.<\/p>","_et_gb_content_width":"","footnotes":""},"categories":[9],"tags":[],"class_list":["post-709","post","type-post","status-publish","format-standard","hentry","category-blog"],"yoast_head":"\n
\nThe Law<\/span><\/h2>
The Politics<\/span><\/h2>
\u00a0<\/span>The First Amendment Issue<\/span><\/h2>
Conclusion<\/span><\/h2>