Friday, March 27, 1998

Court refuses to order new Con Con vote

The 9th U.S. Circuit Court
of Appeals upholds the counting
of blank votes in 1996

Staff and wire

An effort to get Hawaii residents this year to vote on a Constitutional Convention may be down, but not out, despite a federal appeals court ruling this morning.

"This is a state issue, not an issue of federal intervention," said state Senate Judiciary Co-Chairman Avery Chumbley (D, Kihei).

The 9th U.S. Circuit Court of Appeals in San Francisco today refused to order a new Hawaii election to hold a state Constitutional Convention, a proposal defeated in 1996 when blank ballots were counted as "no" votes.

The court ruled that the tabulation of blank votes in a 1996 ballot question, ordered by a Hawaii Supreme Court ruling that changed the state's previous practice, did not violate voters' rights.

Judge A. Wallace Tashima, in the 3-0 decision, said: "It is beyond belief to suggest that thousands of voters who left the convention question blank were secretly relying on the hope that their votes would not be counted, and that they would have voted 'yes' had they foreseen the (Hawaii Supreme Court) ruling."

Chumbley today said he would meet with fellow Judiciary Committee members to decide whether to hold a hearing on a House bill still alive that would put the Con Con on the November ballot.

The committee, he said, could amend the wording of the question or decide not to change the bill, and send it to the full Senate where it could be passed and sent to the governor.

Propoents of the convention may also seek a higher appeal. Attorney Frederick Rohlfing III, a spokesman for Citizens for a Constitutional Convention, said his group was disappointed by the appeals court's ruling and will consider whether to make a request to the U.S. Supreme Court to review today's decision.

But, Rohlfing added, "It appears that the best chance we have of achieving a state Constitutional Convention is for the state Senate to pass House Bill 3130, House Draft 1, that would put the question on the ballot.

"Voters ought to be given another opportunity to say whether they want to have a Constitutional Convention."

Rohlfing said putting it to voters on the November ballot would save the state the cost of having a special election as was required by U.S. District Judge David Ezra's ruling, which the appeals court rejected.

"It is only fair that the question be put to the voters one more time with all the cards on the table, so to speak. Voters will now know that if they leave their ballots blank it will be counted with the no ballots. If there are more blank, spoiled and no ballots then the question is defeated," Rohlfing said.

If voters approve of having a Constiutitonal Convention, then the Legislature must schedule an election for convention delegates and likely have the convention by the year 2000, he said.

Meanwhile, opponents of a Con Con say they will lobby against the bill in the Legislature.

"It's just a wait-and-see position until the bill traveling through the Legislature reaches its final destination," said Ryan Mielke, public information officer for the Office of Hawaiian Affairs.

OHA said it will urge Hawaiians to vote no on a Con Con if the bill succeeds and the question is put on the November ballot.

Civil rights attorney Dan Foley said: "I think this is the ruling that people expected. Obviously, it shows that (U.S. district Judge David) Ezra was wrong as were others who criticized the Hawaii Supreme Court's ruling.

"It is a vindication of the Hawaii Supreme Court. No one's rights was violated process in the process."

Foley represents three same-sex couples who want the legal right to marry. Same-sex marriage advocates fear that a constitutional convention will be used by opponents to bar homosexual marriages.

Hawaii's Constitution requires the Legislature to consider a vote on a constitutional convention at least once every decade. The last convention was in 1978.

The 1996 vote was 163,869 in favor, 160,153 against, and 45,245 blank ballots. Before the election, the state Office of Elections had stated in writing that blank balots would be disregarded.

Tashima, joined by Judges Charles Wiggins and John Noonan, noted that states have considerable freedom to design their election laws. He said the state court ruling was a mere "clarification" of the law and did not discount anyone's vote.

Lowell Finley, a lawyer for the state AFL-CIO, said the ruling "reinstates the proper balance of powers between the state and federal court systems." He said the labor organization "did not want to see a Pandora's box opened through the convening of a state constitutional convention."

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