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The Hawaii Supreme Court on Friday invalidated a question on general election ballots asking voters whether they want to amend the Hawaii Constitution to allow the state to tax property in support of public education. Read more

The Hawaii Supreme Court on Friday invalidated a question on general election ballots asking voters whether they want to amend the Hawaii Constitution to allow the state to tax property in support of public education.

Ruling in favor of Hawaii’s four counties, the court unanimously found that the wording of the question wasn’t sufficiently clear. Hawaii law requires that the language of a proposed constitutional amendment be “neither misleading or deceptive.”

With early voting already underway, the court ordered Chief Election Officer Scott Nago to issue a public proclamation saying the ballot question is invalid and that any votes for or against it won’t be counted. A full written opinion explaining the court’s decision is forthcoming.

The decision is a blow to the Hawaii State Teachers Association, which spent two years fighting to have the question placed on ballots. The HSTA has argued that Hawaii’s public schools are woefully underfunded and salaries too low to retain qualified teachers. The union hoped that if voters approved the amendment, the Legislature would then hike property taxes on second homes worth more than $1 million to supply added revenue for the school system.

“To be honest, we are surprised and we’re shocked,” said HSTA President Corey Rosenlee. “We did not anticipate that this would be the decision.”

Rosenlee called on elected leaders to make funding for public schools a priority, whatever the funding source.

“The fight has to continue,” he said. “I think the one commitment we have had is that it is unacceptable right now. We have 1,000 classrooms without a qualified teacher; we have crumbling classrooms; too many of our special-needs children are not getting the adequate services that they deserve.”

The decision follows oral arguments in front of the Supreme Court on Thursday delivered by attorneys for the counties and state Attorney General Russell Suzuki. Justices, in their questioning, suggested that it was a high bar for the court to strike down a measure passed by the state Legislature and put to the public for a vote. But they appeared to grow frustrated as they questioned Suzuki on the meaning of the question.

The question, which already has been printed on ballots, states, “Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”

The counties argued that the word “surcharge” was misleading because it’s really a tax; that it wasn’t clear what “investment real property” referred to; and the clause “as provided by law” was confusing.

Honolulu Corporation Counsel Donna Leong thanked the court during a press conference following the ruling.

“Clearly, the questions that were posed by the court … showed that they had carefully considered the arguments of both parties — the state’s and the counties’ — as well as all of the cases cited in those briefs, and there were a lot of cases, and their questions were just spot-on,” she said.

While the counties have argued that the wording of the question was too confusing for the average voter, they’ve also opposed the amendment itself. Under the Hawaii Constitution, only the counties have the power to tax property. County mayors have said that affording the state this power could end up cutting into their revenue or even hurt their bond ratings.

“The real property tax is the only constitutionally dedicated source of revenues for the counties. That’s the only bucket of money that we can totally rely upon to support all the good serv­ices — the operations, the services, the capital improvement projects — that the counties undertake,” said Leong. “And so we need to protect our sole constitutionally dedicated source of revenue.”

The legal challenge was just one facet of a larger political battle between the HSTA and the counties and business interests that had aligned to oppose the amendment. Political action committees formed by the HSTA and the Affordable Hawaii Coalition, which largely represents business interests, had both raised hundreds of thousands of dollars in recent months to advocate for and against the ballot measure. Both sides have been spending heavily on television and radio ads.

Sherry Menor-McNamara, president of the Chamber of Commerce Hawaii and part of the Affordable Hawaii Coalition, said that the amendment if passed would have increased the cost of doing business in Hawaii and cost of living, with no guarantee that additional funds would go to public education. Asked whether the business community would help find other ways for funding public education, she said that was open for discussion.

“That’s something we have to have an open discussion and talk with each other to find out how can business help,” she said. “There’s also nonlegislative ways where the business communities come out and support our public schools, whether it’s donating goods, providing financial support or just volunteering in the schools. So there’s different ways to help support our teachers and our keiki.”

House Speaker Scott Saiki and Senate President Ron Kouchi said they were disappointed that the Supreme Court had struck down the ballot question, but were noncommittal when asked whether they would try to tweak the language of the question next year and put it back out to voters. A new ballot measure would have to be voted on by the full House and Senate.

“This question about funding for education will be one of the topics we take up when we convene on the priorities of the Hawaii Senate, and we’ll be rolling out our package and ready to discuss things before opening day as far as what we’re going to do next,” said Kouchi.