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HOOSER: Making law via the ballot box

What if Hawai‘i 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,” according to West’s Encyclopedia of American Law.

While the 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 non-agricultural 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 businesses within the county. In other municipalities on the continent this is possible, but in Hawai‘i 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 that pay their Hawai‘i 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? Multi-member 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 County 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 by county:

Kaua‘i

w Ordinances: 20% of voters registered in the last general election (9,450 signatures needed based on 2020);

w Charter cmendments: 5% of voters registered in last general election (2,365 signatures needed based on 2020).

City and County of Honolulu

w Ordinances and charter amendments: 10% of the voters registered in last regular mayoral election. (55,000 signatures needed based on 2020).

Hawai‘i County

w 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);

w Charter amendments: 20% of the total ballots cast in the last general election (17,750 signatures needed based on 2020).

Maui County

w Ordinances: 20% of the total number of voters who cast ballots in the last mayoral general election (10,200 signatures needed based on 2018);

w 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 County 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.

•••

Gary Hooser is the former vice-chair of the Democratic Party of Hawai‘i, and served eight years in the state Senate, where he was majority leader. He also served for eight years on the Kaua‘i County Council, and was the former director of the state Office of Environmental Quality Control. He serves presently in a volunteer capacity as board president of the Hawai‘i Alliance for Progressive Action and is executive director of the Pono Hawai‘i Initiative.
Source: The Garden Island

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