IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
CITY AND COUNTY OF HONOLULU; COUNTY OF HAWAI‘I; COUNTY OF MAUI; COUNTY OF KAUA‘I, Petitioners,
STATE OF HAWAI‘I; SCOTT T. NAGO, in his capacity as Chief Election Officer, Respondents.
ORIGINAL PROCEEDING (CIV. NO. 18-1-1326-08)
DECEMBER 20, 2018
UNANIMOUS OPINION OF THE COURT BY POLLACK, J.
The right of the people to shape the way in which they are governed through free and fair elections is the basis of our democratic society. At no time is this dynamic more pronounced than when the public is called upon to approve revisions to the Hawai‘i Constitution, the foundational document on which our state government is based. In order for the electorate to effectively exercise this most basic of rights, however, a ballot must be capable of rendering a knowing and deliberate expression of voter choice. Thus, when a constitutional amendment is presented to the electorate for ratification, both our constitution and statutes require that the question posed to voters must be clear and neither misleading nor deceptive. And it is this court’s duty to preserve the integrity of the electoral process by invalidating a question that fails to meet this standard.
In this case, several counties of the State of Hawai‘i challenged a ballot question authored by the state legislature that would approve an amendment granting the State the authority to impose a surcharge on investment real property. The challengers argue that the ballot question was unclear and likely to mislead or deceive an average voter. Upon review, this court determined that the ballot question as written did not comply with the requirement that its language and meaning be clear and not misleading. We accordingly declared the ballot question invalid, stating at the time that this opinion would follow. We now elaborate as to our reasoning.
The Hawai‘i Constitution vests “broad authority” in the legislature to propose amendments to its provisions to be ratified by the electorate. Kahalekai v. Doi, 60 Haw. 324, 338, 590 P.2d 543, 552-53 (1979). “But such a change must stand on its own merits” and “cannot fly under false colors.” Askew v. Firestone, 421 So.2d 151, 156 (Fla. 1982). As the legislature recognized in enacting HRS § 11-118.5, the provisions of our constitution are of such foundational importance that the utmost care must be taken to apprise citizens of the effect of their vote on a proposed constitutional amendment. When the language or effect of a proposed amendment or its corresponding ballot question is unclear, misleading, or deceptive, the ballot is not capable of generating the “knowing and deliberate expression of voter choice” necessary for ratification. Kahalekai, 60 Haw. at 333, 590 P.2d at 550. The ballot question in the present case is flawed in not presenting the information necessary to produce such a choice, and this court thus invalidated the ballot question in accordance to our law.
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