9th Circuit
nullifies special vote
on Dec. 6

The court has yet to decide if a
Con Con vote must be held at all

By Mike Yuen
Star-Bulletin

The special election for Dec. 6 to determine whether isle voters favor the convening of a constitutional convention has been blocked.

Yesterday, the 9th U.S. Circuit Court of Appeals in San Francisco sided with the state and quashed a ruling by U.S. District Judge David Ezra calling for the special election.

The appeals court said it will hear oral arguments in January to quickly resolve the debate over a Con Con election.

Six months ago, the Hawaii Supreme Court invalidated the vote from the 1996 general election in which state elections officials declared that voters favored a Con Con.

The balloting was: 163,869 yes, 160,153 no, with 45,335 blank and spoiled votes.

The justices ruled that on measures involving proposed constitutional amendments, it is the majority of votes cast -- not affirmative votes -- that counts.

So blank and spoiled votes should have been tallied with the no votes, they said.

But Ezra ruled that the Supreme Court was wrong.

Voters weren't aware that blank and spoiled votes would be counted with no votes, so a special election needed to be held as soon as possible, he ruled.

State Attorney General Margery Bronster disagreed. But Ezra denied Bronster's request to delay the vote until the 9th Circuit had an opportunity to examine the issue.

"We had always thought that Judge Ezra did not have the right to second guess the Supreme Court," Bronster said.

"What we're saying here is that when the Supreme Court makes a ruling on state law, that's the final word -- unless it is something appealable to the Supreme Court of the United States, which it was not in this case," she added.

Bronster said the appellate court's action makes it likely that the Con Con question will re-emerge on next year's general election ballot.

But Mark Bennett, an attorney for Citizens for a Constitutional Convention and Let the People Decide, which successfully persuaded Ezra to order a new vote, said he will argue before the appellate panel that the question on whether to convene a Con Con should be put to voters earlier.

That will allow the state to use the general election to elect Con Con delegates if the issue of a constitutional parley is approved before then, he said.

"We're obviously disappointed in the part of the ruling that grants a stay," Bennett said. "But we're pleased the 9th Circuit expedited the appeal and set the final argument for January."