Referenda have been strongly criticised in recent years. Western liberal democracies are fixated on representative democracy, with elections as the pinnacle of democratic participation. However, political apathy and voter dissatisfaction are pressing problems. This paper argues that referenda can be a democratically legitimate method for major constitutional change. The problems canvassed in the literature and witnessed in recent examples, such as “Brexit”, are merely problems of practice not principle. To redeem constitutional referenda, a comparative approach is adopted to analyse the referendum methods used in New Zealand, Australia, Ireland, Switzerland and the United Kingdom. From this assessment, a model provision is developed that should guide the process for any major constitutional referendum in New Zealand. It injects a dose of direct, participatory and deliberative democracy into our representative system, thereby improving the democratic legitimacy of constitutional referenda.

Of Demagogues and Dictators? The Redemption of Constitutional Referenda in New Zealand

Referendums and initiatives have long been described as deliberatively deficient and unfit to implement deliberative democracy. Categorized as aggregative mechanisms, they would undermine quality deliberation by setting predefined policy options to potentially polarizing mass votes, with no room for face-to-face exchange nor opportunities for citizens to develop informed judgments. Recent developments in deliberative democratic theory increasingly challenge this view. This article builds on this literature to argue that referendums and initiatives can serve deliberative systems by incentivising representatives to engage in recursive representation – namely, conversation-like exchange at the mass level with the represented deemed essential to deliberative systems. They do so by modifying the formal opportunity structure of representative actors, which impacts them in popular vote campaigns – but also over the long term. Acknowledging these long-term effects of systems including referendums and initiatives opens new questions that can guide further research on these processes’ value for deliberative democracy.

https://delibdemjournal.org/article/627/galley/4438/download/

Supporting Deliberative Systems with Referendums and Initiatives

The main aim of this final essay is to draw on the insights gathered in the Debate “Do Referendums Enhance or Threaten Democracy” to inform future normative and empirical discussions about the design of popular vote processes. We first offer some clarifications regarding three of the concerns raised by respondents about our introductory essay. We then propose a systematic classification of the lines of variation along which the design of popular vote processes usually varies. More precisely, we highlight nine lines of variation: trigger, origin of the text, legal basis, scope, trigger requirements, time, ballot, information, and decision rule. We conclude by emphasizing the relevance and necessity of debating the formal institutional design of popular vote processes.

Designing Popular Vote Processes to Enhance Democratic Systems

This article revisits the zonal malapportionment endemic in Queensland’s electoral system before the Fitzgerald Inquiry and examines how reform was won. The process is found to be one of liberalising but not ground-breaking catch-up. Viewing Queensland’s zonal system in the larger perspective of manipulation of electoral maps, this article compares Premier Bjelke-Petersen with populist strongmen in South Australia (Playford) and Quebec (Duplessis), who employed similar rhetoric to entrench themselves. Ultimately, as others had, Queensland’s agrarian chauvinism proved long-running but brittle. The Queensland example is intriguing for the paradoxes it presented. An important rhetorical component of it was the signalling of anti-democratic values inherent in the zonal system. The electoral manipulations merged pretence with openness. The pointed rejection of democratic pluralism married with the projection of an image of leadership by right. Bjelke-Petersen was proud to govern over, rather than through, democracy.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1579826_code768727.pdf?abstractid=1579826&mirid=1&type=2

Electoral Malapportionment: Partisanship, Rhetoric and Reform in the Shadow of the Agrarian Strong-Man

In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government has considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.

LevyRon

Papers

The Deliberative Case for Constitutional Referenda