Making law in Hawaii via the ballot box

What if Hawaii residents, fed up with the lack of leadership at the state legislature, decided to take matters into their own hands and change the law themselves?

This is the power of citizen initiative. “A process of a participatory democracy that empowers the people to propose legislation and to enact or reject the laws at the polls independent of the lawmaking power of the governing body.” West’s Encyclopedia of American Law,

While the Hawaii State Constitution does not provide citizens with the power to pass State law at the “ballot box,” this citizen law-making tool is available at the County level.

Citizens have the right with certain limitations to put on the ballot for a public vote, proposals for both new County ordinances (laws) and/or changes to the County Charter.

Though rarely used, the power of citizen initiative at the County level is potentially a powerful tool.

In theory, citizens could tackle the elephant in the room and limit the growth of tourism.

For example citizens could be asked to vote on a measure that essentially states, “No new lands shall be re-zoned for short-term visitor accommodations, nor shall any residential transient vacation rental permits be issued, until the County has established visitor industry carrying capacity limits via a comprehensive community planning process, and has passed into law appropriate ordinances intended to limit negative impacts on cultural, environmental and other essential community resources/services (roads, housing, emergency services etc.).”

Note to those who enjoy quibbling over words: The exact language of any proposal would require extensive thought and legal review. The examples used here are intended only to be a launching point for further discussion.

Another idea likely to resonate with some: “No agricultural lands shall be converted to any nonagricultural use except those lands that directly abut existing urban areas, are serviced by adequate infrastructure, and developed for affordable housing defined as 100% of median or below.”

It’s unclear whether or not the County has the right to establish a minimum wage that applies to private business within the County. In other municipalities on the continent this is possible, but in Hawaii this power may be reserved to the State.

However, there are always “work arounds.” It may be possible that a citizen based ballot initiative could require that, “The County may contract with and purchase supplies only from entities who pay their Hawaii employees at or above a specified minimum wage.”

On the issue of environmental protection, a ballot initiative could expand on existing law and propose a broad and comprehensive ban on single use plastics or other similar items.

County elections are also fair game to an extent. Do you support Council Districts? Multimember Districts? A County Manager system?

The primary caveat is that any proposed initiative must deal only with issues that fall within the County’s legal authority. For example the County may not pass laws that directly impact public education, airports, courts, harbors, and similar State regulated areas of society.

Generally speaking County ballot initiatives cannot directly spend money, cannot increase taxes and cannot down-zone property. It is my understanding that a ballot initiative may set conditions that legally limit “future up-zoning” and may create new programs/departments that will cost money in the future to implement. However a ballot initiative cannot actually amend the County budget nor directly spend money. Full disclosure: I am not a lawyer and welcome the input of those who know this area of the law better than I.

The challenge is clearly identifying a proposed ballot initiative that:

1) Falls within County jurisdiction and legal limits of ballot initiatives.
2) Creates bold systemic change – It only makes sense to tackle a ballot initiative if the issue/proposal is “big” and enables/creates systemic change that would be unlikely to pass through a normal Council process.
3) Is broad in its impact yet easy to understand.

If there is interest and energy, there is still time. Depending on various factors, the proposal would have to be clearly articulated and legally vetted by August of this year in order to provide the many months needed to gather the signatures and meet the various legal deadline requirements.

The citizen initiative process only happens when citizens take the initiative to make it happen. So…what say you?

Signature requirements per County:

Kauai County
Ordinances: 20% of voters registered in the last general election.
( = 9,450 signatures needed based on 2020)
Charter Amendments: 5% of voters registered in last general election.
( = 2,365 signatures needed based on 2020)

City and County of Honolulu
Ordinances and Charter Amendments: 10% of the voters registered in last regular mayoral election. ( = 55,000 signatures needed based on 2020)

Hawaii County
Ordinances: 15% of total number of persons who voted for the office of mayor in the last election. ( = 13,000 signatures needed based on 2020)
Charter Amendments: 20% of the total ballots cast in the last general election. ( = 17,750 signatures needed based on 2020)

Maui County
Ordinances: 20% of the total number of voters who cast ballots in the last mayoral general election ( = 10,200 signatures needed based on 2018)
Charter Amendments: The Maui charter provides two separate options. The first requires a petition signed by 10% of the voters registered in the last general election. ( = 10,800 signatures needed based on 2020). The proposed amendment is presented to the city council, which votes on whether or not to submit it to an election. The second option is a petition signed by 20% of the voters registered in the last general election ( = 21,600 signatures needed based on 2020). After certification of a 20% petition, the proposed amendment shall be submitted at the next general election.

Note: Persons serious about pursuing a County ballot initiative are advised to read the County Charter, do their own math, and seek legal advice as to process, language and authority.

About garyhooser

This blog represents my thoughts as an individual person and does not represent the official position of any organization I may be affiliated with. I presently serve now as a volunteer President of the Hawaii Alliance for Progressive Action (H.A.P.A.) www.hapahi.org I am also currently the Vice-Chair of the Democratic Party of Hawaii. In a past life, I was an elected member of the Kauai County Council, a Hawaii State Senator and Majority Leader and the Director of Environmental Quality Control for the State of Hawaii - in an even earlier incarnation I was an entrepreneur and small business owner. Yes, I am one of the luckiest guys on the planet. Please visit my web site AND sign up for my newsletter (unlike any email newsletter you have ever gotten, of that I am sure) - http://www.garyhooser.com/#four “Come to the edge.” “We can’t. We’re afraid.” “Come to the edge.” “We can’t. We will fall!” “Come to the edge.” And they came. And he pushed them. And they flew. - Christopher Logue (b.1926)
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3 Responses to Making law in Hawaii via the ballot box

  1. Jon Olsen says:

    YES!

    “No agricultural lands shall be converted to any nonagricultural use except those lands that directly abut existing urban areas, are serviced by adequate infrastructure, and developed for affordable housing defined as 100% of median or below.”

    About 50 years late, but better late than never. I cringe at the amount of wonderful agricultural land around Mililani has been converted to houses. Makakilo with marginal land is fine, however.

    We in Maine have been using such referenda for years. One scheduled for next year would prohibit the major (foreign owned) electric company from creating a 150 foot 55 mile corridor thorough Maine’s intact north woodlands. In the dead of winter, we collected 100,000 signatures across Maine (only needed 66,000 valid names to count) to get it on the ballot. Hard, but can be done. Jon

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