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It can be difficult to feel heard when it comes to government reform. While citizens have a vote on Election Day, that vote may feel empty to those who perceive no candidate who truly represents them. That frustration often leads to protests when voters don’t see elected representatives taking action on particular issues.

But in some instances, the public can take direct action to change laws. The initiative process allows a critical mass of people to force a citizen vote on a specific issue of concern.

In Hawaii, every county provides a process for citizen initiatives. At present, there is no citizen initiative process to change things at a statewide level.

For anyone interested in changing county law, here are the mechanics of the initiative process. In broad strokes, every initiative process follows the same general steps.

First, you must define the issue and how it will be addressed. What is the exact language that your proposal will add or amend? Will your proposal change the county’s charter or its ordinances? (The charter is a foundational governing document for the county, equivalent to its constitution, while ordinances are specific laws.)

Next, you must identify who is in charge of your initiative project. Each initiative must have a committee of five people (sometimes fewer) who are officially responsible for the proposal.

Then, you need to collect signatures from registered voters. Our counties have different rules on the number of signatures needed, which are laid out below. Once you have enough signatures and these have been verified by the county clerk, your proposal will be placed on the ballot and will go to the electorate for a vote.

The Importance Of Knowing What You’re Doing

There are pitfalls. Even if you follow all of these procedures exactly, your petition may fail for other reasons. So it is important to do some research upfront to make sure that your petition has the greatest chance of success before collecting signatures. Here are a few things to consider:

• Does the county itself have the authority to do what you are proposing? If you are trying to repeal Obamacare with a county initiative, for example, it won’t matter if a majority of voters agree with and vote for the repeal — the county doesn’t have the authority to do it. In recent years, courts have struck down a Hawaii County initiative to decriminalize marijuana and a Maui County initiative banning the use of genetically engineered plants in agriculture. If the initiative conflicts with federal or state law, then it will not stand up to scrutiny in court.
• Even if the county does have authority, is that authority restricted to a specific procedure? In 1989, the Hawaii Supreme Court struck down a City & County of Honolulu initiative to rezone land, noting that state law required a specific zoning process that involved input from many stakeholders, but the initiative only addressed the concerns of the general public. Similarly, in 2007, the Supreme Court struck down a real property tax initiative on Kauai, holding that the county’s taxing authority under state law rested only with the county council, not a citizen initiative process.
• Is the petition clear? The Hawaii Supreme Court recently refused to let the electorate vote on a proposed constitutional amendment because the proposal was, according to the court, “unclear and likely to mislead or deceive an average voter.” Although the case did not concern the language of a citizen initiative, the court’s finding relied on cases about the language of citizen initiatives. In the end, if you are going to put something on the ballot, you will need to make sure that the question presented can be properly understood by an average voter.­

The Nuts And Bolts

Here is a county-by-county breakdown of the initiative regulations as they currently exist in our charters:

City & County of Honolulu

Petition requirements: Petitions to place a proposal on the ballot — whether that proposal seeks to change the charter or an ordinance — must be signed by registered voters equal to 10% of the total voters registered in the last regular mayoral election (for example, based on 2020 election numbers, a petition in the City & County of Honolulu would need 54,994 signatures to qualify).

Petition sheets must record the voters’ names, residences and dates of signing. Each sheet of the petition must be accompanied by an affidavit of the person who collected the signatures.

The petition sheets are filed with the city clerk, who examines the authenticity of the signatures.

For proposals seeking to change an ordinance, once signatures are verified, the City Council has an opportunity to adopt the proposal, eliminating the need for a citizen vote. If the City Council chooses not to adopt the proposal, the proposal goes on the ballot.

For petitions that seek to change the charter, once signatures are verified, the proposal goes on the ballot.

If an ordinance proposal goes to a citizen vote and it is approved by a majority, for two years after the proposal’s adoption the City Council can repeal it only by a three-quarters vote (seven of the nine council members).

Limits on scope: Proposed ordinances cannot change taxes, appropriations, bonds, city employee salaries, or matters governed by collective bargaining contracts. There are no limits on charter petitions.

(Details are in the City Charter §§ 3-401 et seq., 15-101(b).)

County of Hawaii

Petition requirements:  Petitions to change an ordinance must be signed by registered voters equal to 15% of the number of persons who voted for mayor in the last election (i.e., 12,953 signatures based on 2020 election numbers).

Petitions to change the charter must be signed by qualified electors equal to 20% of the total ballots cast in the last preceding general election (i.e., 17,722 signatures based on 2020 election numbers).

For petitions that seek to change an ordinance, the county clerk must approve the petition before it is circulated for signatures. Petition sheets must record the voters’ names and dates of birth (as well as residence and last four digits of SSN for charter initiatives) and must be accompanied by an affidavit of the person who collected the signatures.

The county clerk must review the authenticity of signatures after collection. The County Council then has an opportunity to adopt the ordinance proposal before it is submitted to voters.

If the council does not adopt the proposal and it goes to a citizen vote and is approved by a majority, for three years after the proposal’s adoption the County Council can repeal it only by a three-quarters vote (seven of the nine councilmembers).

Charter petitions are filed with the County Council, and signatures are reviewed by the county clerk for authenticity before the measure is placed on the ballot.

Limits on scope: There are no limits imposed by the charter.

(Details are in the Hawaii County Charter arts. XI and XV.)

County of Maui

Petition requirements: Petitions to change an ordinance must be signed by registered voters equal to 20% of the voters who cast ballots in the last mayoral general election (i.e., 10,130 signatures based on 2018 election numbers).

Petition sheets must record the voters’ names and residences and must be accompanied by an affidavit of the person who collected the signatures.

Petitions to change the charter must be signed by registered voters equal to 10% of the voters registered in the last general election (i.e., 10,793 signatures based on the 2020 election) if the County Council approves the proposal; or, without County Council approval, must be signed by registered voters equal to 20% of voters registered in last general election (21,586).

Charter petition signatures are reviewed by the county clerk for authenticity.

For petitions to change an ordinance, the county clerk receives the petition before the proposal is circulated for signatures. All signatures must be collected within six months of that initial filing with the county clerk, but there is a limited opportunity to supplement with additional signatures if the county clerk finds the petition insufficient.

The county clerk then reviews the authenticity of signatures. The County Council has an opportunity to adopt the ordinance proposal before it is submitted to voters. If an ordinance petition goes to a citizen vote and is approved by a majority, the County Council cannot repeal the proposal for a year and after that only by a two-thirds vote (six of the nine council members).

Limits on scope:  Proposed ordinances cannot change the county’s capital program or budget, property taxes, appropriations, bonds, the appointment of employees, or any emergency ordinance. There are no limits on charter proposals.

(Details are in the Maui County Charter art. 11, § 14‑1(2), (3).)

County of Kauai

Petition requirements: Petitions to change an ordinance must be signed by registered voters equal to 20% of the registered voters in the last general election (i.e., 9,451 based on the 2020 election). Ordinance petition sheets must record the voters’ names and residences and must be accompanied by an affidavit of the person who collected the signatures.

Petitions to change the charter must be signed by registered voters equal to 5% of the voters registered in the last general election (i.e., 2,363 based on the 2020 election).

Ordinance petitions are filed with the city clerk, who examines the authenticity of signatures. The County Council has an opportunity to adopt the proposal, eliminating the need for a citizen vote.

Charter petitions are filed with the County Council, and signatures are reviewed by the county clerk for authenticity.

Limits on scope: Proposed ordinances cannot change the county’s capital or operating budget, financial matters related to public works, taxes, emergency legislation, appropriations, county employee salaries, appointment of employees, bonds, or any matter covered under collective bargaining contracts. There are no limits on charter proposals.

(Details are in the Kauai County Charter art. 22, § 24.01(B).)

Power To The People

Our representative democracy works for many things. But sometimes inertia, special interests or the press of other important matters keeps elected officials from dealing with an issue.

If you are passionate about that issue, rather than grumble, you can take direct action to make that change. All over the United States, initiatives have served as a catalyst for increased civic engagement because they give citizens a chance to be heard.  The tools exist to do the same in Hawaii.