During this election season, there has been a lot of discussion about whether Hawaii should adopt statewide initiative. Statewide initiative would allow citizens to bypass the Legislature by getting enough signatures on a petition to put a measure on the ballot to amend the state Constitution or enact any law. Currently only the Legislature has the power to enact state law, subject to veto by the governor, and, along with a constitutional convention, the power to propose a constitutional amendment.

Statewide initiative was considered and rejected by Hawaii constitutional conventions in 1950, 1968 and 1978. It was again recently considered and rejected in 2022 by the Commission to Improve Standards of Conduct, a commission that I chaired.

I am very familiar with initiative. We have it at the county level where I have represented various groups in getting measures on the ballot, including the Save Sandy Beach Initiative Coalition. Any county initiative must be consistent with the state Constitution and statutes. These are real safeguards in protecting rights enshrined in our state Constitution and statutes.

Statewide initiative, as proposed by many candidates for the Legislature and by political commentators, dispenses with these safeguards allowing for direct amendment of the state Constitution and elimination of rights of minorities, workers, Native Hawaiians, ethics codes and the right to a clean and healthy environment.

Under these proposals, any well-financed special interest group could put a constitutional amendment on the ballot and spend unlimited sums to get it adopted.

The U.S. Supreme Court decision in Citizens United prevents a state from limiting what political action committees (formed by special interest groups) can spend in pushing for their constitutional amendments.

Delegates to our constitutional conventions wisely thought of an alternative to having just the Legislature proposing constitutional amendments.

Our state Constitution requires putting a question to the voters every 10 years on whether a constitutional convention should be convened. A constitutional convention has many of the safeguards built into the legislative process. However, since the 1978 Constitutional Convention, voters have chosen not to convene another convention, but eventually they will. The question will appear on the ballot again in 2026.

Had we had statewide initiative in 1993, when our Hawaii Supreme Court ruled same-sex couples had the right to marry unless the state could demonstrate a compelling state interest in denying them licenses, there is no doubt in my mind that there would have been a proposed constitutional amendment on the ballot in November 1994 limiting marriage to a man and woman. Because there was no statewide initiative, those supporting equal rights for our LGBTQ community were able to fight proposed constitutional amendments in the Legislature during the 1994, 1995 and 1996 sessions, and we had our day in court where the state failed to demonstrate its purported compelling state interest to deny marriage licenses to same-sex couples.

We became the first state to recognize same-sex marriage. Unfortunately, in its 1997 session, the Legislature ultimately succumbed to political pressure and proposed the constitutional amendment that was adopted in 1998. The amendment, however, only gave the power to the Legislature to ban same-sex marriage — rather than writing the ban into the Constitution as statewide initiative would have done.

Voters are not without a voice. Every two years they vote. Every 10 years they decide whether we should have a constitutional convention.

Change can and does happen under our current constitutional system without the threat to our constitutional rights that statewide initiative will bring.

Daniel Foley is a retired state appellate court judge, former chair of the Commission to Improve Standards of Conduct and a civil rights attorney.