Hawaii voters are being asked this year to decide proposed amendments to the Hawaii State Constitution relating to same-sex marriage and judicial appointments. Voters in each of the four counties are also considering charter amendments on a range of issues, from mayoral appointments to the establishments of a climate resiliency fund.

Ultimately, according to elections experts, the fate of these proposals may have as much — or more — to do with the ability of voters to decipher what exactly they are being asked as with the actual content of the proposals themselves.

“To the extent that they’re going to be close calls, will not be because there is much organized opposition; it’s going to be that they were confusing,” said Colin Moore, director of the University of Hawaii School of Communication and Information and director of the UH Public Policy Center.

At their worst, ballot measures (also called ballot initiatives or referendums) are miniature masterpieces of obscurity. While these measures may include dense, precise statutory or procedural language, they may lack useful background, context or explanation and are often worded in ways that can be easily misconstrued.

One of the statewide ballot measures asks, “Shall the state constitution be amended to repeal the legislature’s authority to reserve marriage to opposite-sex couples?”

The proposal does not directly address the legality of same-sex marriage in Hawaii, a matter resolved more than a decade ago, but rather the ability of the state Legislature to outlaw it, which was previously granted by a 1998 ballot initiative. In essence, the proposal would help protect same-sex marriage in the state by removing the threat of a future Legislature undoing what was established by the Hawaii Marriage Equality Act of 2013.

Moore said he has heard people on both sides of the same-sex marriage debate have been confused by the question, with some feeling it is somehow a trick.

“I suspect that if it fails, it’s not because people in Hawaii are opposed to same-sex marriage,” he said. “It will be because they found (the question) very confusing.”

Moore said education efforts by the measure’s supporters, including the Hawaii State Teachers Association, have raised the public’s awareness of what the ballot measure means. Not so for the other proposal, which Moore described as “almost impenetrable.”

The measure, which aims to make the Senate confirmation process for judicial appointments more uniform, asks:

“Shall the Constitution of the State of Hawaii be amended to make the appointment and confirmation process for district court judges the same as the appointment and confirmation process for supreme court justices and intermediate court of appeals and circuit court judges, which would require:

(1) The Judicial Selection Commission to present the Chief Justice with a list of not less than four and not more than six nominees for a vacancy;

(2) A district court appointee to be automatically considered appointed if the Senate fails to reject the appointment within thirty days of receiving the appointment notice;

(3) The Chief Justice to make another appointment from the list of district court nominees within ten days if the Senate rejects an appointment; and

(4) The appointment and consent procedure to be followed until a valid appointment is made, or failing this, the Judicial Selection Commission to make the appointment from the list of nominees, without Senate consent?”

Currently, the Judicial Selection Commission provides the chief justice a list of six or more potential candidates to fill district court vacancies. For all other court vacancies, the commission gives the governor a list of between four and six potential candidates. The proposed amendment would bring the number of district court candidates in line with other courts at four to six.

Under the current Senate confirmation process, the state Senate has 30 days to confirm a judicial nominee. For district court positions, if the Senate does not act within 30 days, the commission makes the final decision. For other courts, the nominee is confirmed by default. Under the proposed amendment, nominees for district court would also be confirmed automatically if the Senate does not complete its confirmation process within 30 days.

Ultimately, the proposal would provide for a more expedient resolution to district court confirmations should the Senate be unable to confirm or reject a nominee within 30 days, thereby alleviating some of the Senate’s burden. This, again, is not immediately obvious to lay voters given the way the question is posed, Moore said.

“I’m supposed to do this for a living and I had a hard time,” he said. “It took me a while to figure out what this was really about. I think if that fails, it's not because people have deep-seated objections to making our system of confirming judges more consistent. It's just that, for a lot of people, it'll read like a bunch of legal gobbledygook and they'll just not vote because they don't understand.”

And, in Hawaii, a blank vote is effectively a “no” vote.

For a ballot measure to be approved, two conditions must be met:

• Yes votes receive a majority of votes tallied, excluding blank and over votes
• Yes votes receive at least 50% of the total votes cast, including blank and over votes

Research has indicated that poorly presented ballot measures can compromise the ability of voters to effectively participate in an election.

In one study, University of California-San Diego researcher Mike Binder found that confusion “does lead to more incorrect votes and inhibits the ability of citizens to match their votes with their preferences.” A 2009 study by researchers at Georgia State University further found that questions with lower readability result in higher “roll-off” — voters who stop casting votes on the rest of the ballot.

The Maryland-based non-profit Center for Civic Design, which specializes in making public engagement with government easier and more effective, identified a set of common problems with ballot questions.

According to the organization, questions that are too long can be difficult to follow, especially for in-person voters who may feel rushed or anxious. Also, questions that do not explain outcomes may not provide voters with enough information to make an informed decision.

CCD also noted that proposals that are posed as statements rather than questions can also be confusing. State and county ballot measures in Hawaii generally avoid this problem by using “Shall” as a question prompt, but the resulting “yes” or “no” options may also be problematic. The organization notes that yes-or-no questions may make the options seem at odds with what they actually represent, depending on how the questions are worded.

Michael Tsai covers local and state politics for Spectrum News Hawaii. He can be reached at michael.tsai@charter.com.