What happened to Maui's initiative process?
By Rob Parsons
Published in Maui Time Weekly
May 31, 2007
Get up, stand up: stand up for your rights!
Get up, stand up: don't give up the fight!
In the 2006 general election, less than half of Maui County's 80,000 registered voters showed up at the polls, a turnout worse than Hawai'i's three other counties. With the impacts of growth and development yielding many vital issues, it's perplexing why Hawaii voters are among the worst in the nation in participating in the Democratic process.
It's possible the lackluster interest is an outgrowth of the old plantation mentality, where the lunas' decisions weren't questioned. Perhaps it's a result of a mediocre state public education system. Or it could be that the system itself is too complex and dysfunctional, with Oahu-centric state decisions and a lack of real local representation through district voting for County Council seats.
One glimmer of hope happened at the polls in the 2002 election, when Maui County voters passed a Charter Amendment giving citizens a better chance to create or repeal an ordinance through the ballot initiative process.
Previously, the County Charter language regarding citizen initiatives made it the most onerous process of any state. Placing a measure on the ballot required collecting signatures from 20 percent of registered voters in just 30 days. Not surprisingly, no one attempted putting an initiative on the ballot.
The 2002 amendment to the charter changed the requirements to collecting signatures of 20 percent of actual-not registered-voters within 180 days. For example, there were 38,980 county voters in last November's election, so that means 7,796 signatures would be required to put a proposed ordinance on the 2008 ballot.
A group looking to reform medical marijuana legislation, Maui County Citizens for Democracy In Action (MCCFDIA), has already begun their efforts to register voters and collect signatures for next year's general election. A similar attempt, begun in February 2006, fell short of acquiring the amount of needed signatures, and encountered some unexpected obstacles along the way.
MCCFDIA and Patients Without Time (PWT) launched efforts after finding no County Council members willing to sponsor a decriminalization bill or even consider expanding the allotment system for some 700 medical marijuana patients on Maui so they could grow sufficient quantities of marijuana for their own use.
In 2006, the groups followed the County Clerk's rules by filing an affidavit from five qualified voters, each of whom also trained as a volunteer voter registrar. All were medical marijuana patients. Signature collection headquarters was the WowWee Maui Kava Bar on Dairy Road, where they set up a table 12 hours a day, seven days a week.
When the illness of two patients kept them homebound, the county ruled that only the original five could collect signatures, with no one else allowed to assist. Though the group spent big bucks on radio and newspaper advertising, as well as on a concert at Baldwin Beach Park, they fell short of achieving their goal of eight to 10 thousand signatures.
Daryl Scott is a Mana'o Radio DJ, a medical marijuana patient and one of the original petitioners. He said it is difficult enough to obtain a license, as patients must pay out of pocket to see one of the few Maui physicians willing to prescribe marijuana for medical needs.
Some of those who have obtained a license to grow for their own consumption have been hassled by police, he said. But he also questioned why the licensees are registered with the state Narcotics Enforcement Division of the Department of Public Safety, and not with the Department of Health.
"It's a health issue," Scott said. "Not a criminal issue."
Indeed, he felt that fear of what would become of "the list" was the prevailing reason why many people wouldn't sign the petition.
"It was paranoia," Scott said, "even though we were simply asking Mauians to be part of a democratic process."
He noted that then-Mayor Alan Arakawa was the only politician to sign, not because he chose to support the proposed legislation, but because he believed in the process of bringing the issue to voters at the polls.
In addition to starting earlier this time around, medicinal marijuana advocates have brought in freshman state representative Joe Bertram, III (D, South Maui) to help promote voter registration. Bertram said that as part of their marketing plan, MCCFDIA and PWT will be partnering with a non-partisan coalition known as Citizens Action Network (CAN), similar to the Citizens Action League he worked with as a youth in California. Their goal is to change Hawai'i's reputation for having what he called "the lowest voter turnout in the state and the nation."
Bertram also believes that Hawai'i lacks the most basic type of representation, as the only state in the U.S. that lacks town government.
"We need district voting," he said. "Kauai and the Big Island have it. Our argument against it has been the lower population of Hana, Molokai and Lanai, and that bigger population areas, such as Kihei, would mean we wind up with a council of maybe 15 members. But we need to find a way."
Bertram also noted that the state legislature is "too complex, too obtuse and hinders participation. Everything is crammed into four months, things happen too fast, and bills get lost on the crossover from one house to the other. It's dysfunctional." He also noted that Wyoming, a state of similar size to Hawai'i, has a "unicameral" system, with just one legislative assembly.
In this year's legislative session, Bertram introduced House Concurrent Resolution 10, "Requesting the Mayor and the Council of Maui County to implement various measures regarding medical marijuana in the County of Maui." He also was the sponsor of House Bill 493, which sought to amend existing Hawai'i laws on medical marijuana use and cultivation to mirror less stringent measures adopted by the state of Oregon.
Bertram said at least one veteran legislature took him aside and said that while he understood he might be passionate about the marijuana issue, he had also better think about getting reelected.
"What's more important," Bertram asked rhetorically. "Dealing with important issues or getting reelected?"
Hence the need for citizen-sponsored ballot initiatives. They allow government to address hot-button issues like cane-burning and rampant development without council members needing to worry about lining up against the island's power brokers.
But even as amended by voters in 2002, the Maui County ballot initiative process has its limitations. Initiative power does not extend to measures concerning budgetary or property tax issues, appointment of employees, issuance of bonds or any appropriation of money. In his nine-page analysis of the process back in 2002, University of Hawai'i Professor Dr. Lee Altenberg referred to the limitations as the "Sandbox Clause."
"This clause says that when it comes to money-how much is collected, how it is spent, what jobs it may be used for-the people are not to be trusted to decide about it directly, but all the powers shall go to the politicians," Altenberg wrote. "Because power over money is a fundamental power of government, by denying that power to the voter, the voter is 'kept in the sandbox' and left to play with less decisive matters."
Altenberg described this section of the Charter's Article on Initiative as "the embodiment of the 'plantation paternalism' that kept Maui citizens powerless for decades." In California-a state renowned for the scope of its ballot initiatives-Altenberg found that citizens could propose any statute that the legislature can enact.
Once a citizen initiative has reached the ballot, a simple majority of voters can make it law. Of course, it may not end there.
That's because the County Charter also contains a provision that "Any ordinances enacted pursuant to this article may be amended or repealed by ordinance enacted after one (1) year from the date of certification, but only by the affirmative vote of at least two-thirds of the council membership."
We can hope that the turnout of voters necessary to pass a reasonable ballot measure would also be sufficient to elect a County Council majority that would not seek to overturn such citizen initiatives. In a democratic system where one person equals one vote, that part is up to each of us.