ACLU sues over
ballot measure
The American Civil Liberties Union in Hawaii says the state Legislature goofed when drafting a constitutional amendment, so the measure should be yanked from the ballot.
An ACLU suit filed yesterday asks the Circuit Court to halt a proposal concerning juries from going before the voters. ACLU attorney Lois Perrin said since ballots are already printed, they are seeking a temporary restraining order to stop Chief Election Officer Dwayne Yoshina from tabulating or certifying the vote on Question No. 1.
Perrin said the error occurred when legislators tried to override a 2003 Hawaii Supreme Court ruling that threw out a conviction in a sexual assault case, saying the law violated the defendant's right to due process. The law provides that jurors can find someone guilty of "continuous sexual assault" if they can agree the defendant assaulted a child at least three times during a specific period, even if they cannot agree on three specific dates and incidents.
When the state House tackled the issue, it voted on a bill to amend the statute. When it got to the Senate, the bill was ramped up to a constitutional amendment question for voters.
It did not go back for another House vote and thus "is void for failure to follow constitutionally prescribed procedures," according to the suit. It also claims that Gov. Linda Lingle compounded the error when she signed the act, which was not properly titled as a proposal for a constitutional amendment.
A similar ACLU challenge based on flawed state process killed a 2002 constitutional amendment, even though it was approved by voters.
Eight voters are named as plaintiffs in the suit.
Attorney Earle Partington, who brought the case to the ACLU, said: "The Constitution is supposed to be a basic governing document, not to be tampered with lightly. The amending process is meant to be difficult. The Constitution is not meant to be amended just because someone disagrees with the Supreme Court."
The 2002 question is back on the ballot this year. It provides an alternative to the grand jury process, allowing a judge to decide if there is enough to go forward with a trial on the basis of documentary evidence from the prosecutor.
The Supreme Court invalidated the 2002 vote, finding the state had failed to comply with requirements to publish voter education materials.
This challenged ballot will not be held up despite the suit.
"Early voting starts Tuesday at City Hall, and absentee ballots are going out," said Rex Quidilla, state voter services coordinator.
