Why Blank Votes Count As No Votes For Hawaii Statewide Ballot Measures

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Honolulu, HI (Honolulu Civil Beat)

Supporters of two proposed constitutional amendments are worried they will fail because of the requirement.

The Honolulu Pride parade and festival drew thousands of people to Waikiki on Saturday to celebrate the state's LGBTQ+ community.

Amid all the rainbow imagery one message stood out: "Vote YES On 1: Freedom to Marry."

The signs, banners and T-shirts were paid for by a new Hawaii political advocacy group called Vote Yes for Equality. The group's sole purpose is to support passage of a constitutional amendment on the general election ballot this year that would repeal the Hawaii Legislature's authority to reserve marriage to opposite-sex couples.

But here's the catch: Ratification of ConAms requires more than a simple majority. That's because blank and "over votes," the latter defined as when someone casts more votes in a contest than is permitted, are also counted. And if they add up to more than the yes votes, the measure fails.

The requirement, which the Hawaii Supreme Court has ruled is part of the state constitution, doesn't sit well with state Sen. Karl Rhoads. He is considering legislation to eliminate the counting of blank votes and over votes.

"To change the constitution, some states require more than a 50% threshold," he said. "That's essentially what we have. We just sort of do it back door -- if you don't vote, then it's a no. So you effectively have to have more than 50%."

That, said Rhoads, equates to a supermajority requirement.

"Anything that's not an actual yes counts as a no," he said, adding that people obviously cannot be forced to vote.

Rhoads, the chair of the Senate Judiciary Committee, is worried that too many blank votes might kill the second constitutional amendment on the Nov. 5 ballot, one streamlining the selection of judges and justices.

But to eliminate the counting of blanks and over votes would itself require voting on a constitutional amendment. And the current system has its supporters.

"It can be very frustrating to try to pass an amendment and be "defeated" by voters who just leave the item blank," said Judith Mills Wong, vice president of the League of Women Voters of Hawaii. "However, constitutional changes are very serious matters with far longer effects than the election of a candidate. Making it too easy to amend the constitution could lead to very unfortunate results."

Wong cautioned that a low turnout election combined with a difficult to understand proposal and a small but determined political action committee "could push through an amendment that is not really good for the populace. Is it worth this kind of risk just to make it easier to pass proposed amendments?"

While it is very difficult to amend the U.S. Constitution -- it has happened just 27 times since 1787 -- it's much easier to modify state constitutions. According to State Court Report, the current constitutions of all 50 states have been amended around 7,000 times.

But states vary in how frequently they amend their governing documents.

"The constitutions of Alabama, Louisiana, South Carolina, Texas, and California are amended more than three to four times per year, on average," writes State Court Report contributor John Dinan, a professor of politics and international affairs at Wake Forest University. "At the other end of the spectrum, the Tennessee, Kentucky, Indiana, Illinois, and Vermont constitutions are amended only once every three to four years on average."

Hawaii last amended its constitution in 2016, when it narrowly agreed to a measure involving excess state funds but turned down an increase in the financial threshold for jury trials.

States also differ in how they amend their constitutions.

Most ConAms come from state legislatures but others come from citizen-initiated amendments, commission-referred amendments and convention-framed amendments. Hawaii does not allow for citizens initiative at the state level, and Hawaii's last constitutional convention was in 1978.

Most states permit voters to ratify legislature-crafted amendments by a simple majority vote. But three states require a supermajority threshold: a two-thirds vote in New Hampshire, a three-fifths vote for most amendments in Florida, and a 55% threshold for most amendments in Colorado.

Hawaii is among four states along with Minnesota, Tennessee and Wyoming that require amendments to be approved by "a majority of voters in the entire election," Dinan writes. That means voters who abstain from voting on an amendment "essentially count as no votes."

Illinois, meanwhile, allows amendments to be approved if they are supported either by three-fifths of voters on the amendment "or by a majority of voters participating in the entire election."

State legislatures also diverge in what's needed to place a ConAm on the ballot.

In Hawaii, a two-thirds vote in both the House and Senate is required if the legislation is approved in a single session and the governor is given 10 days' notice of its passage. The governor, however, cannot veto the bill.

The legislation creating the same-sex marriage ballot question was opposed by only one state senator, Kurt Fevella, and six state representatives -- Diamond Garcia, David Alcos, Gene Ward, Sam Kong, Lauren Matsumoto and Elijah Pierick. All but Kong are Republicans in chambers dominated by Democrats.

Garcia, Matsumoto and Pierick also opposed the bill creating the judicial ConAm.

Hawaii's high bar for constitutional ballot questions comes from a 1997 ruling by the Hawaii Supreme Court. It stemmed from a 1996 ConAm that asked if Hawaii should hold a constitutional convention.

Before that year, a simple majority determined whether a ConAm passed or failed. The vote on the 1996 ConAm ConCon was razor thin: 44.4% in favor and 43.4% opposed. And 12.2% of voters left the question blank, though there were no over votes.

Not long after the election, however, the Hawaii State AFL-CIO persuaded the Hawaii Supreme Court that the ConCon ConAm should not be ratified. The court cited the section of the Hawaii Constitution that states a constitutional convention must be held if "a majority of the ballots cast upon such a question be in the affirmative."

That meant that the blank votes had to be counted, the court ruled. Subsequent legal challenges have not been successful in overturning the 1997 ruling.

The last time Hawaii voters were asked about constitutional amendments came in 2018. They overwhelmingly rejected another ConCon as well as a second ConAm that would have imposed a state tax on investment property for public education.

The latter ConAm was invalidated by the Hawaii Supreme Court just weeks before the general election that year -- it ruled that the ballot language was not clear -- but by then it was too late to remove the question from the ballot.

The counting of blank votes and over votes is not applied to country charter questions, nor to determine if a primary candidate for a county office on Oahu or the Big Island wins 50% of the vote plus one to avoid a general election runoff.

But blank votes and over votes along with yes and no votes are used in calculating recounts of close races.

The Hawaii Office of Elections includes an explanation of what blank votes mean on its website and in its voter guide. But it is not explained on ballots.

To inform Hawaii voters about the consequence of leaving votes blank, Vote Yes for Marriage Equality spent more than $40,000 in August and September. Most of the money went to advertising on Facebook and Instagram, a campaign website and signs, and printing and mailing postcards.

Contributors include retired Hawaii Supreme Court Justice Steven Levinson, Hawaii Medical Service Association President and CEO Mark Mugiishi and the Japanese American Citizens League Honolulu chapter.

Contributions from an Oct. 3 fundraiser and the group's latest expenditures will be reported next week.

Vote Yes for Marriage Equality evolved from the Change 23 Coalition, the local organization that pushed for the ballot initiative at the Hawaii Legislature. The marriage clause is in Section 23 of the state constitution.

Josh Frost, chair of Vote Yes for Marriage Equality, said the Hawaii Health and Harm Reduction Center and the Hawaii LGBT Legacy Foundation have run educational advertisements online and on KITV explaining what a blank votes means. The American Civil Liberties Union of Hawaii has also run similar spots on local radio and livestream platforms.

Frost said he did not know of any organized opposition to the same-sex marriage ballot question. But other groups supporting the yes vote include the Hawaii State Teachers Association and the Stonewall Caucus of the Democratic Party of Hawaii, both of which marched in the recent Pride parade.

In spite of the education campaigns, supporters of ConAm No. 1 remain worried that many voters will not know that blank votes count as no votes.

Wong of the League of Women Voters says that ultimately it's up to supporting and opposing groups to educate voters.

"Constitutional amendments are important and serious issues," she said. "Often, voters go to the polls without knowing much about the issue and, perhaps, just leave the item blank, not realizing they are essentially voting no."

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