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Referendums: Yes or No?

Susana Vera/Reuters
People wave a Catalan separatist flag after the banned independence referendum in Barcelona, October 2, 2017

When is it a referendum, and when is it a plebiscite?

Last week brought two passionate and dramatic popular votes for independence, in Iraqi Kurdistan and in Catalonia, Spain. Everyone, even those who dismissed both votes as illegal and meaningless, called them “referendums.” But were they? In practice, the two terms—”referendum” and “plebiscite”—are hopelessly tangled.

My young friend Joan (a male name in his country) has just voted Yes to the question “Should Catalonia become an independent republic?” He emails me: “I casted [sic] my ballot with watering eyes,” and a photo shows him smiling in order to hold back tears as he puts his vote in the box. This he calls a referendum.

My late, far older friend Willy, who was a German schoolboy in 1921, got a French bayonet in his backside during a plebiscite. Germany and the resurrected Polish state were both claiming the coal and steel basin of Upper Silesia. Two bloody uprisings had solved nothing. So the Allied Powers at Versailles arranged a plebiscite, district by district, to determine the borders.

It was to be monitored by Allied troops. But the French soldiers blatantly favored the Poles. So, at the height of the plebiscite campaign, Willy and a bunch of German school-kids from Gleiwitz (Gliwice) unwisely jeered at a French patrol, who charged after them with fixed bayonets. The plebiscite outcome was rejected by the Poles, who complained that hundreds of thousands of Germans with little connection to Silesia had been ferried in to vote. It was only after a third insurrection and a brutal battle at Annaberg that a new border, acceptable to nobody, was drawn.

In Ireland, a vote to accept a new Constitution is a plebiscite, but a vote to amend it (like next year’s vote to remove the Constitution’s anti-abortion clause) is a referendum. In Australia, a plebiscite is a non-binding consultation, designed to test public opinion on some question and gauge whether there is a majority for change. Australians are having a postal plebiscite at this moment on same-sex marriage. A referendum, by contrast, is a binding vote on a constitutional change.

But most of the world, these days, calls any decision by direct popular vote a referendum. Democratic nation-states dislike them, feeling that they confess a failure of representative democracy. France is one country that has tried to tame the referendum. At first, French republicans damned it as a tool of Bonapartism, since it was used by Napoleon III in the nineteenth century to bypass parliaments and base his dictatorship on “the people.” But later, republicans worked the measure into their curious rules for orderly regime change: first a revolution, then a provisional government to prepare elections for a constituent assembly to draw up a new Constitution; next comes a referendum to approve the Constitution; and then, finally, the first parliamentary elections of the new Republic.

Some savants think that a referendum should only be held to ratify or reject a decision already taken by a legislature. Others, including Adolf Hitler, have held so-called retrospective referendums to approve something that had already been done, and certainly wouldn’t be undone whichever way the vote went. Sometimes, the electorate is so cretinous and hypnotized that it marches, singing and carrying flowers, to the polling station, as in the Nazi referendum to approve the Anschluss of Austria to the Reich in 1938. Sometimes, a few opponents had to be disappeared and the results “adjusted.” Well remembered is the Brititsh cartoonist David Low’s pre-war satirizing of a Nazi referendum: “Get your JA here! Put your JA here!”

My own first referendum was in 1979, held to implement or reject a Labour government’s proposal for a devolved Scottish Assembly. But at the last moment, the vote was booby-trapped. A hostile amendment decreed that a Yes vote would only be valid if delivered by 40 percent of the registered electorate. This was typical of the many ways in which referendums can be twisted. It can be reasonable to demand that, say, 75 percent of those who vote must assent to an important proposal. But that target of 40 percent of the whole electorate, calculated on a very out-of-date electoral roll, meant that both abstainers and the dead, in effect, voted No. In the event, there was a small Yes majority, but turnout was nowhere near the 40 percent threshold. Decades of bitterness followed.

The next referendum for a Scottish Parliament came in 1997: fairly set and calmly fought, it delivered a heavy Yes verdict. Then, in 2014, came the referendum on full independence. The poll rejected independence, by a 10 percent margin. But Catalan nationalists still envy it.

Everything the Spanish government is getting wrong in 2017, the British got right in 2014. London accepted that Scots could leave the United Kingdom if they showed unequivocally that they wanted to. The British government campaigned fiercely against secession, but did not contest the ultimate right of the Scots to decide their future. An Edinburgh Agreement between the then prime minister, David Cameron, and the Scottish first minister, Alex Salmond, legalized the referendum and worked out its terms in advance. The No result was heartbreaking for the Scottish National Party and the wider independence movement, but nobody seriously contested the referendum’s fairness. No English bobbies were sent to wreck polling stations in Edinburgh or bludgeon old ladies trying to vote.

David Low/Solo Syndication
An illustration by David Low that appeared in the Evening Standard on April 12, 1938

Behind referendums and plebiscites lies the idea of popular sovereignty. But does that legitimize a “right to self-determination,” when it’s a vote about leaving an existing nation state? That right is, anyway, a fine-sounding collective right, which is almost impossible to define, let alone to enforce. It can be made to mean almost anything: for instance, German postwar “expellees” from Central Europe claimed that it meant their right to return to their homeland and evict the Polish and Czech settlers who had replaced them.

Still less is there a generally recognized right to secede. (I believe one of the Soviet Constitutions included such a clause, but nobody would have dared to invoke it.) Until the 1992 Maastricht Treaty introduced regional policy, coaxing EU members to devolve wide self-government powers to their provinces and peripheries, some European Union members still regarded even local autonomy as a challenge to the integrity of the state. Juristically, most independence movements amounted to treason.

But of course, independence movements do arise within old nation-states, and some of them are thoroughly justified, and some of them—Catalonia’s, in fact—grow so strong that legal appeals to a Constitution or volleys of rubber bullets can’t suppress them. Then, only sober pragmatism helps. Was it really so tragic for Britain when Ireland won her independence? Isn’t it the case that Slovakia’s departure from Czechoslovakia has made relations between Prague and Bratislava actually warmer and easier than they were before? It is hard to imagine any worse way to handle the Catalan challenge than the legalistic bullying and forceful suppression adopted by Prime Minister Mariano Rajoy.

It’s tempting to say that British governments found it easier to deal with Scotland because Britain doesn’t have a Constitution. But then, two years later, came the disaster of the Brexit referendum. It was called for two bad reasons: to settle vendettas inside the Tory party, and because David Cameron was confident that he would win and Britain would stay in the European Union.

He lost both ways. The schism over Europe still cripples his party to this day. And the English—though not the Scots—voted Leave. At once, the bottom fell out of what passes for constitutional tradition. Britain is supposed to operate on the archaic doctrine of parliamentary sovereignty. Put briefly, at the end of the seventeenth century absolute power was taken away from the monarchy and transferred to the Parliament: no law or ruler can be above the absolute freedom of Parliament to legislate as it pleases. No hint of popular sovereignty there.

In 2016, most elected members of the British Parliament were in favor of remaining in the European Union. But then came this unexpected referendum result, proclaiming that the will of the people was Leave and must be obeyed. Incredibly, nobody knew what Britain’s law of state was. Should the sacred sovereignty of Parliament prevail, or the un-English doctrine of popular sovereignty expressed through that newfangled referendum? But moral and intellectual panic at Westminster was soon overlaid by political panic: members of Parliament who defied their constituents over Europe risked losing their seats. So most lawgivers swallowed their principles and fell in behind Prime Minister Theresa May’s march to Brexit.

The parliamentary sovereignty dogma was enshrined by the great Victorian jurist A.V. Dicey. But, funnily enough, Dicey changed his mind about referendums at the end of his life. He feared that his teaching had created a Leviathan: a cabinet entrenched by parliamentary majority that could act without any control at all. So he proposed “negative” referendums. The voters wouldn’t propose anything, but they could veto a government measure that citizens disliked. But nobody took the old man seriously. They suggested that he merely wanted public opinion to block two reforms he dreaded: Home Rule for Ireland and votes for women.

The central factor in referendums is who has the right to call them. Formally, the Kurdish and Catalan referendums were both illegal because neither the Iraqi nor the Spanish government licensed them. (But the European Union showed despicable hypocrisy in snubbing the Catalans, since more than half the EU’s members only exist because they broke away from larger states without permission or prior referendum). Some places—California and Switzerland among them—have for many years granted a specified minimum of petitioners the right to call a referendum. But now, globalized social media is transforming the whole ballot initiative question. A ceaseless torrent of organized demands for change is spreading the habit of direct democracy, which is already bypassing traditional legislatures. Referendums, vulnerable to demagogues and lies as they certainly are, look set to carry the politics of the future.