D.C. No. CV 97-0322 DAE, D.C. No. CV 97-0322 DAE, D.C. No. CV 97-0322 DAE, D.C. No. CV 97-0322 DAE Appeals from the United States District Court for the District of Hawaii David A. Ezra, District Judge, Presiding Argued and Submitted January 16, 1998--San Francisco, California
Before: Charles Wiggins, John T. Noonan, and A. Wallace Tashima, Circuit Judges.
The opinion of the court was delivered by: Tashima, Circuit Judge:
This case presents a constitutional challenge to a vote put to the citizens of Hawaii on November 5, 1996. Plaintiffs ask us to invalidate the vote on the ground that the Hawaii Supreme Court's interpretation of blank ballots was so unforeseeable that the voters' substantive due process and free speech rights were violated. We reject this constitutional challenge and uphold the Hawaii vote.
The vote at issue was on a question asking Hawaii voters whether they wished to hold a convention that would propose amendments to the Hawaii state constitution. The constitutional convention question was one of several unrelated items on the general ballot, including ratification votes on three proposed state constitutional amendments.
By way of background, amendments to the Hawaii constitution can be proposed either by the legislature or by a convention. Haw. Const. art. XVII, S 1. The Hawaii Constitution states:
The legislature may submit to the electorate at any general or special election the question, "Shall there be a convention to propose a revision of or amendments to the constitution?" If any nine-year period shall elapse during which the question shall not have been submitted, the lieutenant governor shall certify the question, to be voted on at the first general election following the expiration of such period.
Haw. Const. art. XVII, S 2. Amendments proposed by the convention must then be ratified by the people. Id. Pursuant to Haw. Const. art. XVII, S 2, voters were asked in 1966, 1976, 1986 and 1996 whether they wished to hold a constitutional convention.
Prior to 1996, machine-counted ballots that left the convention question blank were simply ignored in computing whether the convention question had passed. "Yes " votes were counted against "no" votes, and the majority ruled.
In preparation for the 1996 vote, the Office of Elections distributed an "information sheet" that was present at every polling place. The sheet explained the significance of a "yes" vote and a "no" vote, but was silent on what happened to blank ballots. Additionally, a few days before the election, the Office of Elections printed a "fact sheet" that said that a majority on the convention question would be determined without considering blank ballots. This fact sheet was available at the Office of Elections to be picked up, and some voters did so. The fact sheet was also available on the internet, although only a small number of "hits" occurred at this internet site.
At some point before the 1996 vote -- it is unclear exactly when -- the Office of Elections told Citizens for a Constitutional Convention ("Citizens") that blank ballots would not be counted on the convention question. Citizens is an organization that lobbied Hawaii voters in favor of the convention question, and it claims to have changed its campaign strategy in reliance on the Office of Elections' instruction.
At the November 5 election, the electorate voted (or failed to vote) on the constitutional convention question, as follows: 163,869 voters marked "yes"; 160,153 marked "no"; 45,245 left the question blank; and 90 marked both "yes " and "no." Thus, if blank ballots are counted, they control the outcome of the vote.
Shortly after the election, the Hawaii State AFL-CIO *fn1 sued Dwayne D. Yoshina, the Chief Elections Officer of Hawaii,*fn2 in an original action in the Hawaii Supreme Court. The AFL-CIO sought a declaratory judgment that the constitutional convention question had failed and an order directing Yoshina to certify that it had failed. The Hawaii Supreme Court ruled in favor of the AFL-CIO. Hawai'i State AFL-CIO v. Yoshina, 935 P.2d 89, 98 (Haw. 1997) ("Yoshina I" ).
The court noted that Haw. Const. art. XVII, S 2, required a constitutional convention only if the question received a majority of the "ballots cast upon such a question." (Emphasis added.) Once a convention is convened, however, and amendments are proposed to the voters, the amendments pass if they receive "a majority of the votes tallied upon the question." Haw. Const. art. XVII, S 2 (emphasis added). The court noted the difference in language and pointed to a ...