Vote count of amendment
question allowed
A state judge yesterday declined to stop election officials from tabulating votes on a proposed amendment to the state Constitution dealing with sexual assault on the Nov. 2 ballot.
The ACLU claims that the Legislature and Gov. Linda Lingle erred in the process of preparing the question for a public vote. The proposal concerns jury decisions in sexual-assault cases, and was launched by lawmakers to override a Supreme Court ruling.
"I think interference in the election would be more harmful to the public interest than granting the request," Marks said.
State Attorney General Mark Bennett argued that the process was not flawed. He said the plaintiffs have had five months since lawmakers acted to raise the issue and it is "entirely frivolous" to do so 17 days before the election.
Bennett said it would cause "grave irreparable harm with no possibility of remediation of that harm" if the ACLU motion was granted. "The public ... has the right to expect elections to proceed in an orderly way."
"It's important for the court to speak out now," said attorney Earle Partington, representing eight voters as plaintiffs. They will bring the challenge to the state Supreme Court after the election, he said.
Partington and ACLU attorney Lois Perrin claimed lawmakers acted illegally when they tried to override a 2003 high court ruling. The state House passed a bill to amend an existing statute. But when the matter went to the Senate, it was cranked up to a constitutional amendment question for voters.
The House should have voted again on the altered measure, the suit claims. It also said the process was flawed because the bill was not titled a proposed constitutional amendment when the governor signed it.
Bennett said 90 percent of bills are changed as they proceed through the Legislature.
"There is no ultimate chance of success" for the challenge, the attorney general said after the short hearing. He acknowledged that he rarely takes a case to court personally.
"I think it's an important amendment," Bennett said. "This is about the protection of children from molesters."
What voters will be asked in Question 1 is whether the state Constitution shall provide "that the Legislature may define what behavior constitutes a continuing course of conduct in sexual-assault crimes."
Approval will affirm an existing law that says jurors may 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.
The high court last year threw out a conviction in a sexual-assault case, saying the law violated the defendant's right to due process when he was not convicted for a specific incident.
"The amending process is meant to be difficult," Partington said. "The Constitution is not meant to be amended just because someone disagrees with the Supreme Court."
www.hawaii.gov/elections
