Hawaiʻi voters will have the chance to weigh in on two constitutional amendment questions in the November election.
The questions are related to marriage equality and judicial appointments.
To get on the election ballot, constitutional amendment questions were approved by a supermajority of the state Legislature. From there, the amendment must win a majority of the ballots cast to pass. That means a blank vote is essentially a "no" vote.
The general election is Nov. 5. Voters should receive their ballots in the mail within the coming days.
Question 1:
"Shall the state constitution be amended to repeal the legislature’s authority to reserve marriage to opposite-sex couples?"
Hawaiʻi legalized same-sex marriage in 2013, but left Section 23 in the constitution that says the Legislature shall have the power to reserve marriage to opposite-sex couples.
A constitutional amendment question on the general election ballot asks voters if it should be removed.
What does a “yes” vote mean?
Same-sex marriage is federally protected and the state legalized it over a decade ago. However, Section 23 remains in the state constitution, giving the Legislature the power to limit marriage to couples of the opposite sex.
Voting "yes" on the amendment would remove Section 23.
“One of the things we've learned in recent history is that if you leave buried landmines legally, they may blow up,” said Jeff Hong, chair of the Change 23 Coalition, which has been fighting to remove Section 23.
He explained that it’s important to solidify protections for same-sex couples, as LGBTQ rights have become increasingly threatened at a federal level.
“The (U.S.) Supreme Court has ruled that same-sex marriage is covered under equal protection under the law, but that was a five-to-four decision, and if it came up to the Supreme Court today, that probably would not have happened,” he said.
“Assuming that that went away, a future Legislature would not have to do anything but to pass a law, and then same-sex marriage would go away in Hawaiʻi.”
He’s referencing the U.S. Supreme Court, which indicated that it could be open to relitigating the protection of same-sex marriage at a federal level, despite ruling in favor of it in 2015.
Hawaiʻi inserted Section 23 into its constitution in 1998 after getting 69% of voter approval. It was largely viewed as backlash after the Hawaiʻi Supreme Court became the first in the world to rule in favor of same-sex marriage in 1993.
However, Hong said public opinion has changed.
“Three out of four people now support same-sex marriage,” he said. “The pendulum has swung. We're in a position to now look back and make the correction.”
Question 2:
"Shall the Constitution of the State of Hawaiʻi be amended to make the appointment and confirmation process for district court judges the same as the appointment and confirmation process for Supreme Court justices and intermediate court of appeals and circuit court judges, which would require:
(1) The Judicial Selection Commission to present the Chief Justice with a list of not less than four and not more than six nominees for a vacancy;
(2) A district court appointee to be automatically considered appointed if the Senate fails to reject the appointment within thirty days of receiving the appointment notice;
(3) The Chief Justice to make another appointment from the list of district court nominees within ten days if the Senate rejects an appointment; and
(4) The appointment and consent procedure to be followed until a valid appointment is made, or failing this, the Judicial Selection Commission to make the appointment from the list of nominees, without Senate consent?"
There are currently two different processes to appoint and confirm judges: one for district court judges and another for the Supreme Court, intermediate court of appeals and circuit court judges.
The first question asks if the way district court judges are appointed and confirmed should be more similar to how the other judges are appointed.
What does a “yes” vote mean?
The chief justice appoints district court judges and the governor appoints the others. This question would not impact that. A "yes" vote would change how the chief justice gets the final pool of candidates and how the Senate confirms district court judges to the same process as the other courts.
Here's how judicial appointments currently work. The Judicial Selection Commission — a nine-member body appointed by the state bar, legislative leadership, the governor and chief justice — is required to give the chief justice six or more names for district court vacancies.
But for the other courts, it’s required to give the governor between four and six names.
Voting "yes" would make the number of required candidates for district court the same as the others, between four and six.
The other change is to the Senate confirmation process.
The Senate has 30 days to confirm judicial nominees. If the candidate is rejected, the chief justice or the governor has 10 days to pick someone else from the list and the cycle goes until someone is approved.
If that fails, the judicial selection commission makes the final decision.
The difference in process comes down to if the Senate misses the deadline.
For district court judges, the decision would go back to the Judicial Selection Commission to make a final call. For the others, if the Senate misses the deadline, the nominee is automatically confirmed.
Voting "yes" to this amendment would make the district court the same as the others.
This measure is an initiative from the Senate, which has to confirm many judicial appointments.
Because of this, the Senate has had to call special sessions to manage the district court appointments. If the amendment passes, it would decrease the amount of special sessions needed to confirm judicial appointments.
