J.H. Snider talks about Constitutional Convention

LIHUE — On Tuesday, Hawaii voters will decide whether to convene a Constitutional Convention.

Nationwide, 14 states have a periodic Constitutional Convention referendum, with Hawaii being the only state during the mid-term election voting on the measure.

“Most states have one every 20 years. It’s a pretty obscure interest, although many, many more groups were able to focus on the direct democracy, the initiative which 24 states have every year on the ballot,” said J.H. Snider, editor of the Hawaii State Constitutional Convention Clearinghouse.

Constitutional Conventions are a much rarer form of legislative bypass and in recent decades it’s been much harder to get them to pass, but it’s not unheard of for voters to cast their ballots in favor of conventions.

Hawaii has had three, one in 1950, one in 1968 and one in 1978, he said.

At the 1978 convention, Snider said there were 44 referendums placed on the ballot.

The state of Hawaii has two Constitutional amendment processes. The first one is Legislature initiated Constitutional amendment, which is the most frequently used process because it’s available every year. The second mechanism is the periodic Constitutional Convention, which is only available once every 10 years in Hawaii.

“It’s used as a safety valve because the Legislature has gate keeping power of a Constitutional amendment meaning if the Legislature doesn’t want an amendment let’s say to enhance democratic reform, it has veto power, the ordinary mechanism,” Snider said.

The Constitutional Convention is a citizen initiative allowing residents to go outside of the Legislature to solve significant democratic problems, Snider said.

“The Legislature has its own institutional self-interests both in regards to its own entrenchment of power and in regards to power of competing branches of government,” he said.

Which in Hawaii this year could be local control, the allocation of power between the states and the counties.

“For those types of issues, most directly, a Constitutional Convention provides a safety valve. A secondary type of bypass issue is issues when special interest groups have a stranglehold on the Legislature,” he said.

The Hawaii State Constitution has provisions for two amendment mechanisms, but it doesn’t have the alternative bypass mechanism, which is the citizen’s mechanism, Snider said.

Constitutional Conventions are vehicles to have a discussion about major legislative bypass issues such as voting systems, transparency, ethics and campaign finances, that would never make it out of committee, he said.

“All of those fit in the cluster in the Legislature that can seek to entrench itself in power,” Snider said.

In the convention process, there are three popular votes.

The first one is whether to call a convention, which will be decided by the people on Tuesday.

The second vote will decide who will participate in the convention.

The third vote, which Snider said is the most important vote, proposes amendments that will then be placed on the ballot.

One of the reasons Snider said voters might want to vote in favor of a convention is because in Hawaii there’s a great deal of legislative entrenchment.

In Hawaii, 94 percent of incumbents won in the primary election and zero are expected to lose in the general election and Hawaii has the least competitive party system of all the states.

Then there’s the lack of voter turnout, he said.

“That’s a problem, because if the people don’t vote because they feel their vote doesn’t make a difference, they have less democracy,” Snider said.

The convention would offer an opportunity to have an important civic discussion, because most Hawaii citizens don’t even know that Hawaii has a state Constitution, he said.

One of the arguments against a convention is that Hawaii already has a Legislature, Snider said.

“I’ve disputed that. I believe there’s a reason we have the second one. The Framers I think were pretty clear, for many things the legislative initiating the amendment process makes sense, but it’s important for this to have a safety valve,” he said.

The opponents believe a convention isn’t necessary because there’s already a process in place, he said.

“They’re right, the Legislature, in theory, could propose any kind of amendment, except that it’s a practical matter that they’re not,” Snider said.

Another reason voters might not vote in favor of a convention is the cost. Snider said it could cost $55 million to hold the convention. That number comes from a 2008 Legislative Reference Bureau estimate.

The third element is risk, he said.

“Many of Hawaii’s most cherished rights would be endangered by another convention, which is a tricky argument because those rights were put in play at Constitutional Conventions,” he said.