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Three months ago, we said it was unfair, and probably unconstitutional, to give incumbent senators longer terms than challengers. Unequal Senate
terms must be
fixed immediatelyNow, legal reasons why the Senate terms problem should be fixed this year have been provided by two of the nation's top voting rights lawyers, Stanford law professor Pamela Karlan and Gerald Hebert, former deputy chief of U.S. Justice Department's Voting Rights Section. We explain their reasons in plain language below.
As now written, Article IV, Section 8, of the Hawaii Constitution says the length of some senators' terms after reapportionment shall be based on whether the winner is an incumbent or challenger.
However, the U.S. Constitution does not allow this because it treats some voters and candidates unequally and such unequal treatment is unconstitutional unless justified by a state interest of compelling importance.
The problem is that the votes of persons who support Senate challengers are worth less than the votes of those supporting incumbents. Under current law, incumbent supporters have votes that entitle their candidate to a four-year term, compared to a two-year term for challenger candidates. Meanwhile, unequal Senate terms for incumbents and challengers are entirely unnecessary to maintain a staggered-term system.
Also, a different rule is applied to voters supporting challengers versus voters who support incumbents in the same Senate district. This will tend to limit the pool of challengers for Senate seats and infringe on voters' associational rights just as overly stringent restrictions on candidate eligibility requirements can do.
It is established that state laws may impose only reasonable and nondiscriminatory restrictions on voters' rights. But Hawaii's unequal-terms provision discriminates between two groups of candidates within a particular Senate district, explicitly favors incumbents over challengers, and operates to freeze the political status quo.
The state of Hawaii may also regulate elections if carried out in a fair and even-handed way. But limiting Senate challengers to two-year terms while incumbents get four-year terms is neither fair nor even-handed. The current system never allows the reverse to happen, i.e. allowing successful challengers to receive four-year terms while giving incumbents in the same district two-year terms.
If this matter is not resolved this year, the rights of voters who support challenger candidates will be diminished by an unconstitutional system of electing candidates and an enormous cloud of uncertainty in the elections.
Hawaii voters in 2002 should know that the winning candidates in their districts, be they incumbents or challengers, will receive the same term of office.
We appreciate Pamela Karlan and Gerald Hebert volunteering their legal services to ensure fair elections for the Hawaii Senate. They recently urged legislative leaders to fix the unequal-terms problem this year to avoid a lawsuit to bring about a constitutional method of conducting the 2002 Senate elections.
We agree.
Jean Aoki is a past president of the League of Women Voters of Hawaii; Laure Dillon is Hawaii Clean Elections president; Les Ihara Jr. is a state senator; Larry Meacham is executive director of Common Cause Hawaii.