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Hawaii Supreme Court invalidates ConAm question

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    Hawaii Supreme Court Justice Richard Pollack (left) asks a question to Honolulu Corporation Counsel Donna Leong (standing at right) on Thursday over the proposed constitutional amendment to tax property in support of education.

The Hawaii Supreme Court has invalidated a question on general election ballots asking voters if they want to amend the Hawaii Constitution to allow the state to tax property in support of public education.

Ruling in favor of Hawaii’s four counties, the court unanimously found that the wording of the question wasn’t sufficiently clear. Hawaii law requires that the language of a constitutional amendment be “neither misleading or deceptive.”

“The Chief Election Officer shall issue a public proclamation stating that the ballot question is invalid and that any votes for or against the measure will not be counted and will have no impact,” according to the order from the Supreme Court issued this afternoon. A written opinion is forthcoming.

The decision follows oral arguments in front of the Supreme Court yesterday delivered by attorneys for the counties and state Attorney General Russell Suzuki. Justices, in their questioning, suggested that it was a high bar for the court to strike down a measure passed by the state Legislature and put to the public for a vote. But they appeared to grow frustrated as they questioned Suzuki on the meaning of the question.

The question, which has already been printed on ballots, states: “Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”

Honolulu Corporation Counsel Donna Leong thanked the court during a press conference following the ruling.

“Clearly the questions that were posed by the court … showed that they had carefully considered the arguments of both parties — the state’s and the counties’ — as well as all of the cases cited in those briefs, and there were a lot of cases, and their questions were just spot on,” she said.

While the counties have argued that the wording of the question was too confusing for voters, they’ve also opposed the amendment itself. Under the Hawaii Constitution, only the counties have the power tax property. County mayors have said that affording the state this power could end up cutting into their revenue streams or even hurt their bond ratings.

“The real property tax is the only constitutionally dedicated source of revenues for the counties. That’s the only bucket of money that we can totally rely upon to support all the good services — the operations, the services, the capital improvement projects — that the counties undertake,” said Leong. “And so we need to protect our sole constitutionally dedicated source of revenue.”

The legal challenge was just one facet of a larger political battle between the Hawaii State Teachers Association, which advocated for the constitutional change, and county mayors and local business interests that formed the Affordable Hawaii Coalition to urge residents to vote ‘no’ on the amendment. Both sides have raised hundreds of thousands of dollars in recent months to advocate for and against the ballot measure.

HSTA President Corey Rosenlee said he didn’t expect the Supreme Court to invalidate the ballot question.

“To be honest we are surprised and we’re shocked,” he said. “We did not anticipate that this would be the decision.”

Rosenlee called on elected leaders to make funding for public schools a priority, whatever the funding source.

“The fight has to continue,” he said. “I think the one commitment we have had is that it is unacceptable right now. We have 1,000 classrooms without a qualified teacher, we have crumbling classrooms, too many of our special needs children are not getting the adequate services that they deserve.”

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