October 30, 1998

Mr. Donald Ikeda OPINION NO. 98-6

County Clerk

County of Hawaii

25 Aupuni Street

Hilo, Hawaii 96720

Dear Mr. Ikeda:

Re: Whether Blank, Spoiled, and Invalid Ballots Are Counted in Determining

Whether a Charter Amendment or an Initiative Proposal Has Been Approved by

By letter dated August 18, 1998, you requested an opinion concerning how "blank" and "over" ballots are to be counted with regard to the proposed County Charter amendments and initiative proposal which will be voted on in the 1998 General Election. This opinion is to confirm the oral advice given to you that the phrase "a majority of voters voting upon a proposed initiative ordinance" as used in Section 11-8, Hawaii County Charter, and the phrase "a majority of voters voting upon a charter amendment" as used in Section 15-3, Hawaii County Charter, does not include the counting of blank, spoiled, and invalid ballots.

In the absence of clear legislative language to the contrary, where the applicable statute provides for a vote to be decided by a majority of the electorate, all that is required is a majority of those actually voting on the question as long as the election is available to all qualified voters; absentees and abstainers are thus regarded as assenting to the will of the majority actually voting. Accordingly, to adopt or amend a charter by a "majority vote of the qualified voters of the city," means a majority of the votes polled. 3 McQuillin, Mun. Corp., 3^rd Ed., Section 12.18. (Emphasis supplied.)

In Republican Party of Hawaii v. Waihee, 68 Haw. 258, 709 P.2d 980 (1985), the Hawaii Supreme Court was asked to determine whether Plaintiff Rudy Pacarro was recalled as a member of the City Council of the City and County of Honolulu following a special recall election. In Waihee, the county charter provision at issue provided that "[i]f a majority of the registered electors who vote on the question at a recall election shall vote ‘Yes,’ the elected officer shall be deemed recalled and removed from office, otherwise he shall remain in office." Id. at 259, 709 P.2d at 980. The court acknowledged "[t]he general view that a qualified voter who succeeds in getting his name on the poll list and a ballot in the ballot box is not a voter unless his ballot is such as is prescribed by law, and that blank, illegal, and unintelligible ballots should be rejected in computing the number of votes." Id. at 259-60, 709 P.2d at 981, citing 26 Am. Jur.2d, Elections, Section 314 (now Section 410). However, the court cautioned that "[w]hether that general view has any application in a particular case depends on the particular wording of the charter, statute or constitutional provision in question." Id. at 260, 709 P.2d at 981.

To determine whether blank, spoiled, and invalid ballots are to be counted in determining whether a charter amendment or an initiative proposal has been approved by the voters of the County of Hawaii in an election requires us to examine the relevant provisions of the Hawaii County Charter, which in this case are Sections 11-8 and 15-3 and any relevant state statutes. Section 11-8, Hawaii County Charter, reads as follows:

The relevant portion of Section 15-3, Hawaii County Charter, reads as follows:

Chapter 50 of the Hawaii Revised Statutes, enabled the counties initially to adopt charters and contains a section pertaining to charter amendments and revisions which reads as follows:

While Section 50-11, Hawaii Revised Statutes, does not specify whether blank, spoiled, and invalid ballots are counted, Section 50-10, Hawaii Revised Statutes, which pertains to the ratification of a proposed charter and for any proposed alternative, directly addresses this issue:

Chapter 11, Hawaii Revised Statutes, contains the state law governing elections. Part X, Section 11-151 (3), Hawaii Revised Statutes, reads as follows:

* * *

1. If a contest or question requires a majority of the votes for passage, any blank, spoiled, or invalid ballot shall not be tallied for passage or as votes cast except that such ballots shall be counted as votes cast in ratification of a constitutional amendment. (Emphasis supplied.)

Therefore, pursuant to Section 11-151, Hawaii Revised Statutes, the phrase "a majority of voters voting upon a proposed initiative ordinance" as used in Section 11-8, Hawaii County Charter, and the phrase "a majority of voters voting upon a charter amendment" as used in Section 15-3, Hawaii County Charter, does not include the counting of blank, spoiled, and invalid ballots. Although this opinion is substantially in accord with our memorandum to the County Clerk dated November 14, 1990, it is our intent that this opinion hereafter supersede all previous opinions on this subject.

Please contact me if you have any questions. I apologize for the delay in responding in writing to your inquiry.

Sincerely,

RICHARD D. WURDEMAN

Corporation Counsel

By ____________________________

GLENN H. SHIIGI

Deputy Corporation Counsel

GHS:pc

cc: Al Konishi, Elections Office

APPROVED:

RICHARD D. WURDEMAN

Corporation Counsel