Tuesday, February 23, 2016

Holding A National Referendum

Gerard N. Magliocca

I just finished reading my co-blogger Stephen Griffin's new book (psst--look to the right and you can see how to buy one) and want to say something about his qualified endorsement of creating a process to hold a national referendum.

Longtime readers of the blog know that I am fascinated by what we can learn from British constitutional practice.  The other day the Prime Minister announced that the country would hold a referendum in June on whether to leave the European Union.  This vote is not binding.  Parliament is the ultimate authority on this question.  In practice, though, Parliament will accept the verdict (at least if there is a decisive margin).  On such a fundamental question, this looks like an appropriate process, especially given that Britain held a similar referendum in the 1970s on joining the Common Market.

My view is that the United States would benefit from having an occasional single-issue referendum that is non-binding but would be treated as very important by Congress, the President, and the Court. Perhaps that would be on an issue of war and peace.  (Should we invade Iraq?)  Perhaps that could be on some critical domestic matter (Should marijuana be legalized?)

But can this be done within our present Constitution?  After all, states run our elections.  How can Congress put a question on the ballot across the country?  I think that there is a way.  Under the Article One, Section Four power to regulate "the Times, Places, and Manner of holding Elections for Senators and Representatives," a statute could be enacted stating that "to advise members of the House and Senate on the ballot who are elected" a question of the sort that I am describing could be added.  This could be done, I think, only at a general election for Congress, as there would have to be some connection between congressional elections and a referendum under Article One, Section Four for this statute to pass constitutional muster.

Note that this sort of referendum is very different from the initiative process used in many states, as it would not be binding.  Still, if the results of such a national vote were taken seriously, then the result might be more responsive government.


I don't oppose the idea of a national referendum, but neither do I think requiring the states to include one on the ballot legitimately falls under "time, places, and manner". Time sets the date and hours of the election, places allows regulation of polling places, and manner ballot design and how ballots are counted, but adding a question not relating to the candidates up for election is none of these.

Here's a wild and crazy idea: Don't pretend Congress has the authority to demand this. Ask the states to do it, and offer to pay for the cost. Maybe they'd be willing.

If the thing is merely a non-binding referendum, and it is used to help Congress do its job, it seems to be something in can do under the Necessary and Proper Clause. They can set up their own voting, such as post offices, to vote on the thing.

I don't know if "manner" is so restrictive that it cannot require "a mode of procedure or way of acting" that includes a specific question. But, it seems a problem that need not arise. It is not extralegal for Congress to set up such a referendum elsewhere. It clearly can do it, e.g., at the post office to ask a question tied to that. I'm unsure why it cannot do it in general.

Congress can also simply have a question on its website on Election Day too.

I think there's lots of ways they could hold such a referendum. Commandeering state resources just happens to not be one of them.

If disputes can be avoided, best to avoid them, including the alleged wrong of "commandeering" the states by having them add this thing to their ballots while federal elections are being carried out. What the "cost" of this -- he specifically ties it to "general election for Congress" not some special election -- would be is unclear to me. What are we talking about? The price of the ink for the extra few words on the ballot put in electronic voting machines? But, every little thing counts!

The cost would be establishing a bad precedent that would be further abused in the future. I would oppose this way of doing it even if it somehow saved the states money.

Adding a referendum question to the ballot isn't time, place, or manner of holding voting for members of Congress. I won't go along with pretending it is, or that it's even a close question. It's a rule of law question. Congress doesn't have this particular authority, and so should not attempt to exercise it.

Put polls in post offices. Mail them out with tax refunds. Have the Census ask the question. Set up a question at Politely ASK the states to include the question. There have to be dozens of ways of accomplishing a non-binding referendum that don't involve commandeering state resources.

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Reference was made to "offer to pay for the cost" so "bad precedent" did not seem to be what was at issue. No one wants you to "pretend" anything.

GM actually thinks "a mode of procedure or way of acting" [manner] applies. As noted, there are other ways to do it. Though your concerns for state power makes it less a concern for you personally, the census (for counting people, including characteristics) or taxes (unless the question was specific) seems a stretch too.

I think it is best seen as a 'necessary and proper' thing to help Congress do its job & elections are logical times done there for referendum purposes. It might have some value to have it on the same ballot, but reading what he says, don't think he finds that necessary -- just trying to find a way allowable under our Constitution. So, have postcards at post offices and other fed buildings etc. seems workable.

It's "necessary and proper ", not "convenient and eh, whatever ". If Congress has a dozen proper ways to do something, the fact that an improper way is more convenient doesn't make it constitutional.

Not saying otherwise, fine.

I actually agree with Brett on this one, I don't think 'manner' can be stretched to include the subject of the voting

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A referendum is not an election for Senators and Representatives, so I do not see the power to compel the states to add one to their ballots. On the other hand, if Congress plays nice for once and pays the states for the cost of adding a referendum, they would probably agree to do so.

The real problem would be political. Congress would likely use a referendum to gain a mandate to take some action. If a GOP Congress asked to add a referendum to reverse some welfare state program, would Democrat state governments agree to add it to the ballot? Or vis versa?


See my post at on the proposals of some Democrats in 1860 (including Stephen A. Douglas) for a national referendum on the so-called Crittenden Compromise.

I also forgot to say this morning: These caucus results are great for Rafael Cruz (R-Calgary)! Another third place finish!

And, remarkably, the Nevada GOP became the third state in a row to choose (according to Bart) a Democrat for their Presidential nomination! Such confusion!

Mr. W. wants to ruin this spirit of togetherness on "manner" (which I'm not tied to myself ... it's a stretch at best & unnecessary for a referendum) with election news.

Marbury v. Madison, btw, was decided OTD in 1803, and this was tweeted in its honor:

I was thinking of an idea of only allowing the Senate to block nominees if there was some supermajority against it. I realize Bork only received 58 negative votes, but blocking justices overall was a rare thing & even Bork was a perfect storm. It was quite possible a Bork-like person could have been confirmed if they played the game better and toned it down. The other idea being floated is taking away filibusters and only allowing it some time for delay.



Bad manners?


I actually agree with Brett on this one, I don't think 'manner' can be stretched to include the subject of the voting

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