Understanding Constitutional Referendums: Power To The People

A constitutional referendum is a vote on a proposed change to a country's constitution. It is a way for citizens to have a direct say in any constitutional amendments. Referendums are often mandatory for constitutional changes, and they are used to ensure that any changes to a country's fundamental laws have the support of the people. The referendum process typically involves a bill being passed by parliament, outlining the proposed changes, followed by a public vote, where citizens vote ''yes' or 'no' to the proposal. This process is used in several countries, including Australia, Ireland, Switzerland, and many U.S. states.

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Constitutional changes

A referendum is a vote on a proposed change to a constitution. In some countries, any constitutional amendments must be enacted via a mandatory referendum. These include Australia, Ireland, Switzerland, Denmark, and 49 of the 50 US states (all except Delaware).

In Australia, referendums are the only way to change the constitution. Since 1901, there have been 45 proposed changes to the Australian constitution, eight of which have been approved by a double majority of voters across the nation and a majority of voters in a majority of states. The referendum must take place within six months of the bill being passed. Voting in a referendum is compulsory for Australian citizens aged 18 and over.

In the US, the obligatory referendum on amendments to state constitutions was first adopted by Connecticut in 1818 and has become the prevailing method for the amendment of all state constitutions. Some states require a referendum on bond issues, and among local governments, the obligatory referendum is widespread for bond issues, tax questions, and related matters.

The post-World War II constitutions of France and Italy made popular referendums obligatory for constitutional amendments. In Ireland, a plebiscite referred to the vote to adopt its constitution, but a subsequent vote to amend the constitution is called a referendum.

Mandatory referendums

A referendum is a vote on a proposed change to a constitution. In some countries, a referendum is mandatory for any constitutional change.

A mandatory referendum is a class of referendum that must be voted on if certain conditions are met. They are a legally required step for ratifying constitutional changes, international treaties, and joining international organisations. They are also used for certain types of public spending. Mandatory referendums do not require any signatures from the public.

Countries that require a mandatory referendum for constitutional changes include Australia, Ireland, Switzerland, Denmark, and 49 of the 50 US states (all except Delaware). In these countries, a referendum is the only way to change the constitution, and it cannot be altered without "the approval of the people".

In Australia, a referendum is passed if it is approved by a "double majority". This means that a majority of voters across the nation and a majority of voters in a majority of states must approve the change. This ensures that there is support across the country and that voters in every state have an equal say. Before a referendum is held, arguments for and against the proposed change are prepared by members of parliament. These arguments are published and sent to households with enrolled voters. Voting in a referendum is compulsory for Australian citizens aged 18 and over.

In the United States, the obligatory referendum on amendments to state constitutions was first adopted by Connecticut in 1818 and has become the prevailing method for amending state constitutions. Many states require a referendum for bond issues, tax questions, and related matters.

Plebiscite

A plebiscite is a vote by the people of an entire country or district to decide on an issue. It is a way for a government to go directly to the people, bypassing intermediaries such as political parties. Plebiscites are not elections, as there are no candidates. Instead, people vote 'yes' or 'no' on a proposition.

In Australia, a plebiscite is a vote on an issue that does not affect the federal constitution. However, historically, Australians have used the terms 'referendum' and 'plebiscite' interchangeably, and a plebiscite was considered another name for a referendum. In Ireland, a plebiscite referred to the vote to adopt its constitution, but a subsequent vote to amend the constitution is called a referendum.

Totalitarian regimes also use plebiscites to legitimize their power, as they offer a way of claiming a popular mandate without officially sanctioning an opposition party.

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Voting systems

Referendums are an expression of direct democracy, but they need to be understood within the context of representative democracy. They are used quite selectively, often covering issues such as changes in voting systems. Referendums can be classified into three main categories: citizen-initiated, government-initiated, and mandatory.

In a citizen-initiated referendum, eligible voters petition the government for amendments to the legislature or specific articles within the law. These referendums are typically non-binding, meaning the government is not obligated to act on the outcome. However, they provide voters with a platform to express their opinions on proposed laws and government actions. On the other hand, a government-initiated referendum is started by government authorities and is often used to approve proposed constitutional changes into law.

Mandatory referendums are required by law and are triggered when certain conditions are met or specific government actions are taken. They are commonly used as a legally mandated step for ratifying constitutional changes, international treaties, and joining international organizations. Some countries, such as Australia, Ireland, Switzerland, and most U.S. states, use mandatory referendums for enacting constitutional amendments.

Referendums can also be classified as binding or consultative. Binding referendums have outcomes that must be implemented as stipulated by the relevant constitution and laws. On the other hand, consultative referendums are not binding, and the government has the discretion to partially act on the resolutions or initiate further deliberation. Multiple-choice referendums, where voters select from various options, are less common than binary "yes or no" ballots.

The wording of referendum questions is crucial and can influence how voters perceive the issue. In some cases, the language used may be technical, legalistic, or manipulated to present a particular choice more favourably. This can impact the voters' understanding of the implications of their decision, especially in complex matters such as international treaties or constitutional amendments.

Pre- and post-referendum disputes

A constitutional referendum is a direct vote on a specific issue, often concerning a proposed change to a country's constitution. Some countries, such as Australia, Ireland, Switzerland, Denmark, and most U.S. states, use mandatory referendums as a legally required step for enacting constitutional amendments.

Referendums, especially important ones, are frequently challenged in courts and can lead to disputes both before and after the vote takes place.

Pre-Referendum Disputes

In pre-referendum disputes, plaintiffs may attempt to prevent a referendum from occurring. For example, in 2017, the Spanish Constitutional Court suspended Catalonia's independence referendum. These disputes may arise due to concerns about the legality or constitutionality of the referendum itself, or they may be initiated by those who oppose the potential outcome of the vote.

Post-Referendum Disputes

Post-referendum disputes typically involve challenging the results of the vote. For instance, there were post-referendum challenges to the Brexit referendum in British courts, which were ultimately dismissed. International tribunals have traditionally refrained from interfering with referendum disputes, but this is evolving, as demonstrated by the 2021 judgment of the European Court of Human Rights in Toplak and Mrak v. Slovenia, which extended its jurisdiction to referendums.

Referendums can be complex and controversial, with critics arguing that they may undermine representative government and lead to uninformed or ill-considered decisions on intricate matters. There is also a concern that referendums can be manipulated by the executive for political gain. The separability problem, where simultaneous voting on multiple issues can lead to an outcome that most voters dislike, further complicates referendums.

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