Should Hawaii have a constitutional convention?

KAILUA-KONA — Do you think Hawaii should hold a constitutional convention? Wait, back up. Do you even know what a constitutional convention is?

If you don’t, or if you’re unsure, don’t be ashamed. You’re not alone. According to a poll conducted by the news website Civil Beat, nearly one in five people are unclear or oblivious to the term’s definition.

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But it is one people ought to get to know. Because those who vote on Nov. 6 or via absentee ballot before then, the state of Hawaii is going to ask them if they want one — and the potential implications matter.

The question that will appear on the ballot will be worded as follows: “Shall there be a constitutional convention to propose a revision of or amendments to the constitution?”

Yes votes count as a yes. No votes count as a no. If the question is left blank or a voter makes a mistake while trying to vote, it will also count as a no — a provision made by the state Legislature that some consider questionable at best.

Convention defined

A potential constitutional convention — called a con con — was the topic of a forum held Thursday night in West Hawaii by Community Forums and the League of Women Voters.

Speaking at the forum were four panelists familiar with the topic. One of those panelists was Chad Blair, Ph.D., a politics and opinion editor for Civil Beat on Oahu, who described a constitutional convention as “direct democracy.”

“It’s putting the power back in your hands,” Blair said. “Because you’re not satisfied with what the Legislature is doing.”

A constitutional convention consists of delegates elected from across the state who would convene and develop several prospective amendments to the state’s constitution. The attorney general would then vet those amendments, and they would make their way onto a future ballot for the public to vote on directly.

In a nutshell, it’s lawmaking without the lawmakers, as few legislators — if any — would serve as delegates. Any registered voter over the age of 18 would be eligible for election as a delegate.

Peter Adler, Ph.D., a consultant on Oahu who’s run a think tank in the past and spent years working on various issues throughout the state, described the last constitutional convention in Hawaii as a “bellwether event.”

It occurred in 1978 and produced 35 amendments, all of which were voted into law by the electorate. It created collective bargaining for public employees as well as the Office of Hawaiian Affairs and gave birth to the Water Commission. Beyond that, Adler said it created a new generation of political leaders.

Only three constitutional conventions have ever been held in the state. The first was when Hawaii was granted statehood. The second was in 1968 and the third was convened by the public in 1978. The Legislature can call for a prospective convention to be put on the ballot in any year. If legislators don’t call for one, the option must appear for voters every 10 years.

David Tarnas served as a state legislator from 1994-98 and was the winner of this year’s Democratic primary to represent Hawaii Island’s 7th District. He explained that most in the Legislature would likely be against a constitutional convention because it takes power out of their hands and provides a platform that can give rise to new political entities.

In other words, it’s competition.

“It upsets some people in the Legislature that don’t want to lose that power,” Blair said. “Who are we as a society and what do we want to become? Not our legislators, us.”

The Legislature would have control over much of the process, however, making rules including how many delegates would be elected and how to fund the convention. Still, such a convention ultimately weakens the position of elected officials.

But there are legitimate concerns about a constitutional convention beyond lawmakers’ disapproval of their power being challenged.

A constitutional convention allows for alterations to the very document that determines and grants each citizen of Hawaii his or her basic rights. It presents an opening for opportunists to change those rights both for the better or for the worse.

“There’s high hopes and dark fears, and it all depends on what corner you come from,” Adler said.

The stakes

Civil Beat has come out and endorsed the prospect of a constitutional convention. The news organization has also issued two polls on the topic and Blair said both times, “a healthy majority” of those polled indicated they favored the idea.

However, Lei Kihoi, a longtime Hawaii Island attorney who practices Native Hawaiian law, spoke Thursday night against a constitutional convention.

Both sides offered valid points.

Blair talked about the potential to create an initiative process, as Hawaii is one of only a small number of states that doesn’t allow citizens to put statutes directly before the voters. He also noted the potential to establish the referendum process, which among other powers, allows the electorate to review and repeal laws passed by the Legislature.

Another issue that could be addressed at a constitutional convention is the elimination of the “gut and replace” strategy used by legislators to significantly or completely change a bill’s content and purpose deep into the legislative process. Others issues that might be discussed for amendments include more home rule for counties or the decentralization of the state’s public education system.

Blair said these are issues on which Civil Beat believes Hawaii voters should have a direct say.

For his part, Tarnas didn’t speak for or against a constitutional convention. He did acknowledge, however, that it provides an opportunity for fast, substantial change on major issues that won’t come about quickly, if ever, through the piecemeal legislative process.

But Tarnas also posed the question as to whether now is the correct time to allow delegates, not elected officials, a chance to strike at the heart of Hawaii’s constitution considering the national political climate. He believes that climate will ultimately have an impact on what amendments delegates would put to the voters and potentially, how Hawaii’s laws and the basic rights of its citizens change.

Kihoi gave voice to the same sentiment.

“Right now, the current political climate in Washington is very toxic,” Kihoi asserted. “It’s anti-environment protections. We have a racist climate and there’s a preference for corporate America.”

She added she believes special interests and the money behind them may impact elected delegates, influencing their decision making.

For this reason and others, Kihoi said she is concerned that a constitutional convention could threaten workers’ rights, Native Hawaiian rights, labor protections and protections for conservation, agriculture and the environment.

Beyond that, she noted the cost to taxpayers to even hold a convention.

Adler said in 1978, the Legislature allocated around $2.5 million for the constitutional convention, of which it only spent about $2 million. He added the projected cost of a such a convention 40 years later would amount to between $7.5 million and $48 million, depending on an array of factors. The state’s annual budget is roughly $7 billion.

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Another number to consider is voter turnout. In 1959, registered voters turned up at the polls at a 94 percent clip. But in 2017, only 58 percent of registered voters actually cast ballots.

Translation: Only a fraction of the populous would likely vote on amendments that would govern everyone — just as likely only a fraction will vote on Nov. 6 whether to even hold a constitutional convention in the first place.