On Nov. 6, 2018, Hawaii residents will vote on whether to call a state constitutional convention. The question they will see on the ballot is: “Shall there be a convention to propose a revision of or amendments to the Constitution?” This ballot text is the only form of convention- related media that every voter will see immediately before voting — when many voters are most impressionable.
Unfortunately, this seemingly innocuous question is highly biased because it doesn’t specify whether it refers to the federal or Hawaii Constitution. Close to 100 percent of Americans know they have a national constitution, but less than half know they have a state Constitution. Thus, many Hawaii voters could go to the polls presuming that what is being referred to is the United States Constitution. And since Americans are taught to revere their federal constitution like the Bible, the question could just as well have been worded: “Shall the Bible, written by god, be rewritten?”
In short, the ballot language is strongly biased against a “yes” vote.
The language is derived from New York’s 1846 Constitution. At that time, the language wasn’t biased because prior to the Civil War voters considered state government, including state constitutions, more important than the federal government. State constitutional conventions were also frequent and relatively familiar occurrences, which undermined the notion that they should be treated as sacred convenings by godlike wise men. New York, for example, held state constitutional conventions in 1777, 1788, 1801, 1821, and 1846. Hawaii has held conventions in 1950, 1968, and 1978.
In 2008, the last time this question was on the ballot, Hawaii’s Office of Elections provided voter information guides that included information on the upcoming convention referendum but failed to clarify that the question concerned a state rather than federal convention.
It also failed to explain in a timely and clear way three other attributes:
>> The objective of Hawaii’s framers in including this mandatory periodic provision in Hawaii’s Constitution (to provide a mechanism to bypass the Legislature’s veto power over constitutional amendment);
>> The unsettled constitutionality and unfamiliar nature of the majority the Legislature had claimed it requires to pass (which counts voters’ non-votes as no votes);
>> That the referendum, if approved, would be only the first of three public votes (with the second to elect convention delegates and third to vote up or down any amendments the convention might propose).
All this is essential information if voters are to understand what they are voting on. Alas, offices of election controlled by state legislatures have a poor track record of providing such information. In New York, a former counsel for the governor sued the Board of Elections for the obscure place on the ballot it placed the convention question. In Rhode Island, a former state Supreme Court justice wrote to the Board of Elections that the information it provided to voters was an “attempt to put a negative thumb on the voters’ scale” and was “unauthorized and illegal.”
We should not depend on Hawaii’s Legislature-appointed Elections Commission for unbiased information concerning the upcoming referendum. Instead, we must rely on the press.
As usual, the press should provide pro and con information concerning a referendum. But it should also highlight how this referendum systematically differs from other ballot questions in both democratic function and process.
Doing so would help protect the people’s most fundamental political right: their right to reform their constitution, which encompasses their right to reforms, such as legislative term limits, that the public overwhelmingly supports but the Legislature opposes and will never place on the ballot.
J.H. Snider is the author of “Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other U.S. States 1776-2015” and editor of The Hawai‘i State Constitutional Convention Clearinghouse.
