The Hawaii Supreme Court is expected to rule quickly after hearing oral arguments this morning on whether a question on general election ballots asking voters if they want to give the state the power to tax investment property to support public education should be invalidated.

Supreme Court Chief Justice Mark Recktenwald said that the court would take the matter under advisement after listening for more than an hour to arguments from attorneys for both Hawaii’s four counties and state Attorney General Russell Suzuki.

Currently, only the counties have the power to tax property. The ballot question asks voters if they want to amend the Hawaii Constitution to allow the state to levy a surcharge on investment properties to support public education.

The question, which has already been printed on ballots, specifically states: “Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property?”

Attorneys for Honolulu, Maui, Kauai and Hawaii counties have argued that the wording of the question is unlawful because it’s unclear and misleading. They say the word “surcharge” obscures the fact it would be a tax and that “investment real property” isn’t defined. Further, they argue that the clause “as provided by law” is confusing and vague.

“The average voter would not even know what a surcharge is. Some voters don’t even know what real property is,” Honolulu Corporation Counsel Donna Leong told the court.

While justices appeared concerned at times about interfering in matters involving the Legislature, asking county attorneys what deference the court should afford state lawmakers, they also seemed to grow frustrated when trying to get answers from the state about the ballot question’s meaning.

Associate Justice Paula Nakayama asked if she bought a home for her daughter to live in, whether that would be considered investment property. Suzuki said that it would be left up to the Legislature to define that term.

“So how is a person supposed to vote on this?” asked Nakayama.

“How do I know as a voter that that’s not going to be taxed?”

“Then I think you should probably vote ‘no,’” Suzuki responded, surprising some in the courtroom and prompting laughter.

With early voting already underway, the Supreme Court is expected to rule expeditiously in the case. In the event that the court does invalidate the ballot question, any votes cast on the matter won’t count.

The Supreme Court’s decision to hear the petition followed a Sept. 7 ruling by First Circuit Judge Jeff Crabtree in which he rejected a request by the counties for a preliminary injunction blocking the ballot question. Crabtree said the counties didn’t meet the standards for granting a preliminary injunction, which include a likelihood they would prevail in the case. While he said the language of the question wasn’t as clear as it could be, he didn’t think it was deceptive or rose to the level of being unlawful.

Attorneys for the counties then took the unusual move of filing a “petition for extraordinary writ” with the state’s highest court.