Senate Bill 982 proposed to change we count votes on amendments to our State Constitution.

by Dinna, Sen Thielen’s Blog March 8, 2013 (see April 9 update below)

Senator Thielen asked me to update you on this bill, since many readers were interested in the topic earlier this session.

First, some background. Hawaii’s Constitution describes how it can be amended:

“The revision or amendments shall be effective only if approved at a general election by a majority of all the votes tallied upon the question, this majority constituting at least fifty per cent of the total vote cast at the election.”

A popular misconception is that “blank” or “over” votes are counted as “no” votes. They are not. However, ballots containing “blank or “over” votes on the proposed constitutional amendment are counted in the total number of ballots cast.  (“Over” votes are where someone fills in both “yes” and “no” on the same question.)

The Hawaii Supreme Court ruled that a constitutional amendment only passes if at least 50% of the total ballots cast include a “yes” vote. Hawaii State AFL-CIO v. Yoshina (1997) determined that the “total ballot cast” included “yes”, “no”, “blank”, and “over” votes. This means that to ratify a proposed constitutional amendment, the percentage of “yes” votes must be a majority of the total ballot cast.

Here how the count is done under the law today.

Sample Election: 100 ballots are returned by voters
40 vote yes on the Amendment
20 vote no on the Amendment
30 leave the Amendment question blank
10 vote both yes and no on the Amendment

Under our current law, the constitutional amendment fails. You would need at least 50 “yes” votes for the amendment to pass.

Some people like this method of counting votes. They think any amendment of the constitution should reflect broad popular support. In the example above, 40 out of 100 votes is not broad popular support. Especially when you consider that our voter turnout vote is the lowest in the nation.  This vote could reflect only 40 out of 200 or more Hawaii residents eligible to vote.

Other people are frustrated that the lack of participation in voting on the proposed amendments is killing what they see as important constitutional amendments. They want the law amended to only count yes and no votes for constitutional amendments.

If we changed the law to only count yes and no votes, the amendment would pass in the above example, 40 to 20.

SB982 SD1 was amended to try & find some middle ground between these two positions. The amendment is extremely complicated, an explanation is provided below for hard-core numbers crunchers who want to read it over. But for the rest of us, the big question is whether you prefer to change the Constitution to make it easier to amend.

SB 982, SD1 formula for counting votes on a proposed constitutional amendment:

“Each amendment shall be effective only if the amendment is approved at a general election by a majority of all the votes tallied upon the question; and the number of votes tallied upon the question in comparison with the number of votes cast at the general election is a percentage that is at least equal to the percentage of votes tallied upon constitutional amendments proposed by the legislature in comparison to the votes cast at the general election in which the amendments were voted on in the immediately preceding ten years. As used herein votes tallied do not include blank or spoiled ballots, and “votes cast” includes all ballots, including blank and spoiled ballots.”

This can be very confusing and we will try to explain it the best we can. Basically this is saying if you take the amount of tallied votes (yes and no votes) and divide by the total ballots cast (yes, no, blank, and over votes) then you have the percentage of tallied votes. Then you compare that figure with the average of all percentages of tallied votes for all constitutional amendments for the last ten years.

Using the example above, we will calculate the percentage of tallied votes. Then that percentage must be compared with the average of all percentages of tallied votes for all constitutional amendments for the last ten years.

X = A+B+C+D
= 40+20+30+10
X = 100

Z = A+B
= 40+20
Z = 60

P = Z/X
= 60/100
P = 0.60 or 60%

Table 1

* years with more than one percentage had multiple amendments posted on the ballots.  The numbers reflect the percentage voting on each question in that year.

Since our percentage of tallied votes is only 60%, compared to the average of 90.4% the constitutional amendment wouldn’t pass. The percentage of tallied votes would have to be 90.4% or greater. So even though the yes votes were 66.67%, because the percentage of tallied votes the constitutional amendment wouldn’t pass.

From the explanation above; the current law, the original SB982, and SB982 SD1, which one do think the best option on passing constitutional amendment?

If you have a simpler formula for a middle ground, let us know. Please post it below. Maybe the “crowd commentary” can come up with a simpler formula.

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UPDATE

by Dinna, Sen Thielen’s Blog, April 9, 2013

On my previous blog I posted an explanation of SB 982 and the proposed SD1.  For those who have not read my previous blog, or needed refresher on the explanation and examples on this bill, check out my previous blog on >>> this link. 

Here is an update on SB 982, SD1 after it passed to the Senate and crossover to the House:

Status
SB 982 was amended by the first House committee, then not heard by the second House committee.  As a result, the bill will not move forward this year.  It will still be “alive” next session, and could move forward then.

House Amendment
The House committee on Judiciary heard the bill and passed an HD1. It stated that only ballots including a “yes” or “no” vote be counted in determining whether or not a majority of voters have approved an amendment to the State Constitution.

The HD1 disregarded the SD1 and made it simpler to understand.

However, the House version made it more likely that a constitutional amendment be approved, because it would not consider “blank” or “spoiled” ballots when counting the total number of ballots cast.

The SB 982, SD1, HD1 was then referred to the House committee on Finance, but they did not schedule hearing on the bill. The bill is now dormant and will carry over to next year’s legislative session.

Conclusion
House Committee on Finance can either hear the bill next legislative session or the bill can be re-referred to other committees.  In addition, other bills relating to counting votes on ratifying constitutional amendments can also be introduce next session.

Senator Thielen felt the issue of how we count ballots for constitutional amendments must be handled carefully.  We want to ensure that we protect the sanctity of the Constitution.  She appreciates the input from so many people on the topic, and thanks you for helping her sort through these issues.

We will let you know if this bill or other bills on the same topic, moves forward next year.