Regulating Referenda in Europe

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REGUL TING REFEREND INEUROPE N ST TES

Legal Memorandum

June 2014


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REGULATING REFERENDA IN EUROPEAN STATES

Executive Summary

This memorandum provides a comparative analysis of the legal frameworksgoverning referenda and related practices in Denmark, Italy, Sweden, andSwitzerland. A referendum is a process by which an issue is presented to theelectorate for a vote of approval or rejection. While Denmark, Italy, Sweden, andSwitzerland all provide for the use of referenda, the initiation process, governing

procedures, subject matter, and legal effects vary widely.

In Italy and Switzerland, citizens can initiate referenda through popularpetitions while in Denmark and Sweden, only the legislatures are empowered tocall for a referendum. However, in Sweden, if a majority of voters vote againsta

proposed constitutional amendment submitted through referendum, the vote isbinding and the legislature is prevented from further action. Moreover, certainconditions can necessitate a referendum in Denmark, Italy, and Switzerland.

Referendum procedures among these states are no less diverse. The timebetween a call for a referendum and the actual vote is distinctive in each state, asis the practice of timing referenda to coincide with other elections. Practicesrelating to voter eligibility requirements are generally more common among thesestates, but even here some variety remains. Furthermore, the procedure to submita proposal for constitutional change may differ and prove more rigorous than the

procedure for other issues submitted to referenda. For instance, in Sweden, aconstitutional referendum requires identical decisions in the legislature before twodifferent Riksdag sessions and the possibility of submission to the nationalelectorate for a non-binding vote.

With regard to the potential subject matters of referenda, on one end of thespectrum, Switzerland has virtually no restriction on what can be put to areferendum, and specifies significant categories of law for which referenda areobligatory. On the other end, Denmark and Italy prohibit referenda for laws in

several substantive areas. Denmarks Constitution expressly forbids referenda forfinance bills, supplementary and provisional appropriations bills, government loan

bills, bills to amend the laws governing civil servants, salary and pension bills,naturalization bills, expropriation bills, and taxation bills. In Italy, laws regulatingtaxation, the budget, amnesty, pardon, or any law to ratify international treaties areexempt from referenda.


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The legal effects of referenda are similarly varied, not only across states,but also depending on the circumstances of the vote: they range from purelyconsultative to absolutely binding. For instance, not all referenda decisions are

binding to the Italian Parliament; some are only consultative.

Although referenda constitute an important feature of the democraticinstitutions in each state surveyed here, no single model prevails. Resemblancesabound, but the distinctive political cultures of each state have given rise to direct-democracy mechanisms that uniquely suit those cultures. Accordingly, theproper choice depends on the priorities of the people and institutionsresponsible for crafting the states referendum framework.


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TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Overview of Referenda in Europe 1A Brief History of Referenda in Europe 1Types of Referenda 2

Rationales for Referenda 3The Legal Effects of Referenda 3

Regulating Referenda 4

Comparative State Practices 5Denmark 5

How and By Whose Authority Referenda are Called 6Whether Referenda are Optional or Mandatory 7Whether Referenda are Required or Restricted for ParticularSubjects 11Legal Consequences of Referenda 12Timing Considerations 12How Authorities Develop Referendum Ballot Texts 13How Referendum Campaigns are Regulated 13Whether Referenda are Appealable 14Voter Qualifications and Referendum Procedures 14How the Results of Referenda are Determined 14

Italy 14How and By Whose Authority Referenda are Called 15Whether Referenda are Optional or Mandatory 17Whether Referenda are Required or Restricted for ParticularSubjects 17

Legal Consequences of Referenda 17Timing Considerations 19How Authorities Develop Referendum Ballot Texts 19How Referendum Campaigns are Regulated 20Whether Referenda are Appealable 21Voter Qualifications and Referendum Procedures 22How the Results of Referenda are Determined 22


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Sweden 22How and By Whose Authority Referenda are Called 23Whether Referenda are Optional or Mandatory 25Whether Referenda are Required or Restricted for ParticularSubjects 25Legal Consequences of Referenda 26Timing Considerations 27How Authorities Develop Referendum Ballot Texts 27How Referendum Campaigns are Regulated 28Whether Referenda are Appealable 28Voter Qualifications and Referendum Procedures 29How the Results of Referenda are Determined 29

Switzerland 30How and By Whose Authority Referenda are Called 31Whether Referenda are Optional or Mandatory 31Whether Referenda are Required or Restricted for ParticularSubjects 32Legal Consequences of Referenda 33Timing Considerations 33How Authorities Develop Referendum Ballot Texts 34How Referendum Campaigns are Regulated 36Whether Referenda are Appealable 36Voter Qualifications and Referendum Procedures 37How the Results of Referenda are Determined 38

Conclusion 39


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Regulating Referenda in European States, June 2014

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REGULATING REFERENDA IN EUROPEAN STATES

Statement of Purpose

This memorandum provides a comparative analysis of the legal frameworksgoverning referenda and related practices in Denmark, Italy, Sweden, andSwitzerland.

Introduction

Most European states provide for some form of direct democracy.1 Acommon direct-democracy mechanism is the popular referendum. In areferendum, a states political authorities submit a law or policy to a vote by theelectorate for approval or rejection. Denmark, Italy, Sweden, and Switzerland each

employ referenda in distinct ways, and referendum results are given differentweight in each state.

Overview of Referenda in Europe

This overview provides a brief history of European referenda, the formssuch referenda take; the reasons states have chosen to adopt referendum

procedures; the legal effects of referenda; and the procedures and regulationsgoverning referenda in Europe.

A Brief History of Referenda in Europe

Referenda have been a feature of European politics for over 200 years.France first employed referenda in the 1790s, and Switzerlands Constitution has

provided for direct democracy mechanisms since 1778.2 Referenda have becomeeven more common in Europe in the past two decades with many European statesusing them to decide whether to join the European Union (EU) and whether toratify EU treaties.3 Today, nearly all European states provide for referenda in their

1Thirteen states in Europe do not use referenda for direct democracy: Albania, Armenia, Azerbaijan, Belarus,Bosnia and Herzegovina, Cyprus, Czech Republic, Kosovo, Moldova, Monaco, Montenegro, Norway, and Ukraine.See Direct Democracy Navigator,List of 100 Countries, available at http://direct-democracy-navigator.org/countries.2Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook, 42, 188(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.3Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 188(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.


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constitutions.4

Types of Referenda

Referenda are typically categorized as either mandatoryor optional. Areferendum is mandatory if certain conditions described in a states constitution orrelevant legislation automatically trigger the vote by operation of law.5 Mandatoryreferenda are often restricted to particular types of political decisions, such as:(1) constitutional amendments; (2) adoption of international treaties; (3) joiningsupra-national organizations, or otherwise relinquishing some aspect of a statessovereignty; and (4) resolving conflicts between different governmental branches.6Many states exempt certain categories of issues from decision by referenda, suchas taxes and public expenditures.7 More than 50-percent of European states have

provisions for mandatory referenda.8

A referendum is optional where no vote is required but political leaders ormembers of the public may call for the issue to be submitted to the electorate.9More than 75-percent of European states allow optional referenda.10Generally, thelegislature authorizes and commences referenda by majority vote.11 The rules andregulations governing the passage of a referendum may be providedconstitutionally, statutorily, or on an ad hoc basis.12 Ad hoc rules may be made

part of the referendum itself or are otherwise decided when the referendum isproposed.13

4European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States, 5 (Nov. 2, 2005), available at http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2005)034-e.5Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 4 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.6Institute for International Law and Human Rights,A Comparative Look at Referendum Laws,4 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.7Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.8Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 42,Figure 2.1 (2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.9

Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.10Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 42,Figure 2.1 (2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.11Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 47(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.12Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.13Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.


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Some states provide for both optional and mandatory referenda.14 Forinstance, in Switzerland, any changes that Parliament makes to the Constitutionmust be approved by a mandatory referendum. On the other hand, if citizensdisagree with a regular act of Parliament, they can launch an optional referendumto bring the legislation to a popular vote.15

Rationales for Referenda

Referenda serve several purposes. The voting process may help resolvedivisions within a government or governing coalition; advance laws that would not

pass through the ordinary legislative process; demonstrate popular support for aspecific proposal, politician, or party; or protect a legislative minority.16 It alsoadds a procedural hurdle to making especially momentous political decisions.17Where a law affects values important to the electorate, a referendum ensures the

tradeoff is consistent with the public will.18

The Legal Effects of Referenda

The results of a referendum may be legally binding, advisory, or a mix ofboth.19 For instance, in Denmark, legally binding referenda are the rule butconsultative referenda are not excluded.20 The distinction may have little

practical difference, as democratic governments often find it unwise to disregardpopular referenda results.21 At the other extreme, a states political leadership mayfind ways to circumvent binding referenda results by: initiating a referendum on asimilar but technically different question following an unfavorable result; repeatingreferendum proposals absent any restrictions from doing so; and exploiting

14Swiss Confederation,Referendums(last accessed Apr. 29, 2014), available at https://www.ch.ch/en/referendum.15Swiss Confederation,Referendums(last accessed Apr. 29, 2014), available at https://www.ch.ch/en/referendum.16Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 3 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.17European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 54 (Nov. 2, 2005), available at

http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.18European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 54 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.19Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.20Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.21Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.


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ambiguities related to the scope or length of a referendums validity.22

Regulating Referenda

A referendum may be regulated by: (1) a states written constitution;(2) general, permanent legislation; or (3) specific, individual laws governing thereferendum.23 Even where a states constitution establishes a mechanism forreferenda, legislation specifying greater procedural detail is common.24 Generally,mandatory referenda implemented according to constitutional provisions or

permanent statutes may be viewed as more transparent and legitimate.25 Optionalreferenda regulated on an ad hoc basis may be more susceptible to tacticalmaneuvers designed to influence the result by deciding the issues to be voted on,the timing of the vote, the wording of the ballot question, the approval quorum, andso on.26

The role of political authorities and others in calling and approving referendavaries widely. In a few states, only the chief executive can call a referendum.27More commonly, either the legislature alone has authority to call a referendum or

both the executive and legislature must agree to initiate a referendum.28 In someinstances, a minority of legislators or regional entities can refer issues to a vote ofthe electorate.29 The ability of legislatures to overrule or reject the results of areferendum also varies.30 Referenda may also be initiated by popular initiatives.

22Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 50(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.23Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 51(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.24European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 5 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 25Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 51(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.26Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 51(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.27European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 7 (Nov. 2, 2005), available at

http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.

28European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 7-8 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 29European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 8 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 30European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 9 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.


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In such cases, the primary issues are related to the collection of signatures,including the time limit for collecting signatures and the means of verifyingsignatures.31 Centralized boards or commissions are often designated andauthorized to regulate any irregularities, which may arise.32These mechanismsmay operate locally or federally and may answer to various agencies in both the

judicial and legislative branches.33

Comparative State Practices

The following sections describe the regulation of referenda in Denmark,Italy, Sweden, and Switzerland. Each section describes for a specific state:(1) how and by whose authority referenda are called; (2) whether referenda areoptional or mandatory; (3) whether referenda are required or restricted for

particular subjects; (4) the legal consequences of referenda; (5) timing

considerations for referenda (e.g., the time between calling and holding areferendum, and whether referenda are separate or coincident with other elections);(6) how authorities develop referendum ballot texts; (7) how referendumcampaigns are regulated; (8) whether referenda are appealable; (9) voterqualifications and referendum procedures; and (10) how the results of referenda aredetermined.

Denmark

Denmark is a constitutional monarchy.34 The states liberal-democraticpolitical system is moderately hospitable to referenda, although referenda cannotbe initiated by popular initiative.35 Referenda have been increasingly employed toresolve political questions over the years, especially on issues of Europeanintegration.36 Since its accession to the EU in 1973, Denmark has held six

31European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 23 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 32European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 24 (Nov. 2, 2005), available at

http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.

33European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 24 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 34DENMARK CONST.art. 2(1953), available athttp://www.eu-oplysningen.dk/upload/application/pdf/0172b719/Constitution%20of%20Denmark.pdf%3Fdownload%3D1.35DENMARK CONST.art. 42(1)(1953).36Palle Svensson,Denmark: The Referendum as Minority Protection, in THE REFERENDUM EXPERIENCE IN EUROPE33 (Michael Gallagher and Pier Vincenzo Uleri, eds., 1999), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm.


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referenda regarding the EU.37 Laws implicating certain substantive areassuch ascession of sovereign authority to supranational organizationsmust be approved

by a vote.38 Conversely, other substantive areas are wholly exempt from thisprocedure.39 Thus, Denmark takes a measured approach to referenda, generallyfalling comfortably within the outer bounds of the states analyzed here.40

How and by whose authority referenda are calledDenmarks Constitution provides the legal basis for calling national

referenda.41 Between 1916 and 2002, Denmark held 19 national referenda.42 Atleast half of these have resulted in a change in favor of the referenda.43 Once a bill

passes in Denmarks parliament (the Folketing), which consists of 179 directlyelected members, one-third of the members of the Folketing can call for areferendum that is open to the entire electorate.44 The electorate includes allDanish citizens who are age 18 and over, with permanent residence in Denmark,

Greenland, or the Faroe Islands.45 Separately, Denmarks monarch can trigger areferendum by introducing bills or other measures to the Folketing.46Politicians atstate, regional, and municipal levels can also decide to hold consultative referenda.Citizens initiatives and recall elections are unavailable in Denmark.47

In the case of a national referendum, the Folketing must notify the primeminister of an impending referendum if unable to reach a resolution within the time

37Folketinget,Referenda(May 16, 2006), available at http://www.eu-oplysningen.dk/euo_en/dkeu/referenda/.38DENMARK CONST.art. 20(2)(1953); see Institute for Democracy and Electoral Assistance,Direct Democracy:The International IDEA Handbook 189 (2008), available athttp://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf; see alsoFinn Laursen,Denmarkand the Ratification of the Lisbon Treaty: How a Referendum was Avoided, DALHOUSIE EUCENTER OFEXCELLENCE (EUCE),3(Jul. 15, 2009),available athttp://www.dal.ca/content/dam/dalhousie/pdf/Diff/euce/pubs/Occasional_paper_7.pdf. 39Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 5 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.40Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 189(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.41DENMARK CONST.(1953).42Palle Svensson,Denmark: The Referendum as Minority Protection, in THE REFERENDUM EXPERIENCE IN EUROPE33,Table 3.1 (Michael Gallagher and Pier Vincenzo Uleri, eds., 1999), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm; Folketing,Facts and Figures: Referenda

(Jan. 25, 2012), available athttp://www.thedanishparliament.dk/Publications/~/media/Pdf_materiale/Pdf_publikationer/Informationsark/Engelsk/Referenda.pdf.ashx. 43Folketignet,Danish EU Referenda (May 16, 2006), available athttp://www.eu-oplysningen.dk/euo_en/dkeu/referenda/.44DENMARK CONST. art. 42(1).45DENMARK CONST. art. 29(1) (1953).46DENMARK CONST. art. 21 (1953).47Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 189(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.


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prescribed in the Constitution.48 The prime minister must publish the text of thebill and of the referendum along with a public announcement that there will be areferendum.49 The referendum will then be held in accordance with the decisionof the Prime Minister, not less than twelve and not more than eighteen weekdaysafter the publication of the Bill.50

Whether referenda are optional or mandatoryBoth mandatory and optional referenda are available in Denmark.

Mandatory referenda are called for: (1) amendments the constitution;51(2) changesthe voting age;52or (3) delegates constitutional governing powers to internationalauthorities.53 Optional referenda are called for: (1) adopting international treaties;and (2) bills.54

Before 1915, the Folketing could amend the Constitution by passing a bill

containing the amendment.55 The Constitutional Act of 1915 imposed a morestringent process for amendments, which is still largely in place today.56First, the

parliament must pass a bill containing the proposed amendment.57 Then, a newFolketing is elected, and the amendment must pass unalteredin the newly electedFolketing.58 Within six months of the amendments passage by the new Folketing,it must be approved by a popular referendum.59 Pursuant to a constitutionalamendment in 1953, the amendment passes only if a majority of the participatingvoters approve, with the number of voters in the approving majority constituting atleast 40-percent of the entire electorate.60

48DENMARK CONST. art. 42(4) (1953).49DENMARK CONST. art. 42(4) (1953).50DENMARK CONST. art. 42(4) (1953).51DENMARK CONST. art. 88 (1953).52DENMARK CONST. art. 29 (1953).53DENMARK CONST. art. 20 (1953).54Institute for Democracy and Electoral Assistance,Kingdom of Denmark(Jul. 18, 2012), available athttp://www.idea.int/uid/countryview.cfm?id=63.55

DENMARK CONST. art. 88 (1953).56Palle Svensson,Denmark: The Referendum as Minority Protection, in THE REFERENDUM EXPERIENCE IN EUROPE33 (Michael Gallagher and Pier Vincenzo Uleri, eds., 1999), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm.57DENMARK CONST. Part X, Sec. 88 (1953).58DENMARK CONST. Part X, Sec. 88 (1953).59DENMARK CONST. Part X, Sec. 88 (1953).60Palle Svensson,Denmark: The Referendum as Minority Protection, in THE REFERENDUM EXPERIENCE IN EUROPE33 (Michael Gallagher and Pier Vincenzo Uleri, eds., 1999), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm.


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The 1953 referendum to amend the Constitution approved the currentversion of the Denmarks Constitution.61 The most recent referendum forconstitutional amendment was the Danish Act of Succession referendum in 2009,in which over 85-percent of the electorate voted to eliminate male-preference

primogeniture in favor of absolute primogeniture for succession to the Danishthrone, meaning later-born sons lost precedence over earlier-born daughters in theline of royal succession.62

Since 1953, Denmark has held five referenda concerning proposed changesto the voting age.63 After the Folketing passes a bill altering the voting age, it mustalso be submitted to a referendum.64 The bill will fail if a majority of the

participating voters are against it and if those voters constitute at least 30 percentof the electorate.65 In 1953, voters decided to lower the voting age from 25 to 23.66Eight years later, a referendum approved lowering the voting age to 21.67 The

electorate then voted against lowering the voting age to 18 in 1969, with nearlyhalf of the electorate voting to retain the voting age of 21.68 Two years later, voterslowered the voting age to 20 in yet another referendum.69 The current voting ageof 18 was adopted in a 1978 referendum.70

Under the Danish Constitution, it is possible to delegate certain of the statesgoverning powers to international authorities that are set up by mutual agreement

61Palle Svensson,Denmark: The Referendum as Minority Protection, in THE REFERENDUM EXPERIENCE IN EUROPE

33 (Michael Gallagher and Pier Vincenzo Uleri, eds., 1999), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm.62DENMARK CONST. art. 2 (1953).63Folketing,Facts and Figures: Referenda3 (Jan. 25, 2012), available athttp://www.thedanishparliament.dk/Publications/~/media/Pdf_materiale/Pdf_publikationer/Informationsark/Engelsk/Referenda.pdf.ashx.64DENMARK CONST. art. 29(2) (1953).65DENMARK CONST. arts. 29(2), 42(5) (1953).66Folketing,Facts and Figures: Referenda3 (Jan. 25, 2012), available athttp://www.thedanishparliament.dk/Publications/~/media/Pdf_materiale/Pdf_publikationer/Informationsark/Engelsk/Referenda.pdf.ashx.67Folketing,Facts and Figures: Referenda3 (Jan. 25, 2012), available athttp://www.thedanishparliament.dk/Publications/~/media/Pdf_materiale/Pdf_publikationer/Informationsark/Engelsk

/Referenda.pdf.ashx.68Folketing,Facts and Figures: Referenda3 (Jan. 25, 2012), available athttp://www.thedanishparliament.dk/Publications/~/media/Pdf_materiale/Pdf_publikationer/Informationsark/Engelsk/Referenda.pdf.ashx.69Folketing,Facts and Figures: Referenda3 (Jan. 25, 2012), available athttp://www.thedanishparliament.dk/Publications/~/media/Pdf_materiale/Pdf_publikationer/Informationsark/Engelsk/Referenda.pdf.ashx.70Folketing,Facts and Figures: Referenda3 (Jan. 25, 2012), available athttp://www.thedanishparliament.dk/Publications/~/media/Pdf_materiale/Pdf_publikationer/Informationsark/Engelsk/Referenda.pdf.ashx.


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with other states for the promotion of international rules of law and cooperation.71But such delegation must win approval in a referendum.72Because lawsdelegating such power transfers inherently cede some degree of sovereignty, theConstitution establishes rigorous requirements for approving such bills.73

A bill transferring sovereign governing authority to an international orsupranational authority must receive support from a five-sixths supermajority oflegislators (that is, 150 of the 179 members of the Folketing).74 If the bill receivesthe majority required for passing ordinary laws but fails to garner the requiredsupermajority, Folketing members must submit the bill to a referendum of theentire electorate.75 If a majority of the votes constituting at least 30 percent of theelectorate reject the bill, it will fail.76 Notably, bills introduced to dischargeexisting treaty obligations are exempt from this referendum process.77

This provision has been important where Denmarks participation in the EUwas at issue. Indeed, Denmark has been among the states calling most frequentlyfor referenda on issues relating to the EU, with six EU-related referenda since1972.78 For instance, in a 1992 referendum, Danish citizens rejected theMaastricht Treaty, which formally created the EU and the euro currency.79 In1993, the Danish electorate approved a modified Maastricht Treaty, supplemented

by the Edinburgh Agreements four exceptions to treaty provisions that Denmarkhad found objectionable.80 However, a 2000 referendum once again rejectedDenmarks adoption of the euro.81

Danish citizens have also occasionally voted to reverse parliamentarydecisions in this area, exemplifying how referenda can harness popular support to

71DENMARK CONST.art. 20(1) (1953).72DENMARK CONST. art. 20(2) (1953).73DENMARK CONST. art. 20(2) (1953); see alsoFolketinget, The Danish Constitutional Act and Referenda(Mar. 7,2013), available at http://www.eu-oplysningen.dk/euo_en/dkeu/referenda/constitution/.74DENMARK CONST. art. 20(2) (1953).75DENMARK CONST. art. 20(2) (1953).76DENMARK CONST. art. 42(5) (1953).77

DENMARK CONST. art. 42(6) (1953).78Folketing,Danish EU Referenda (last accessed Apr. 16, 2014), available athttp://www.eu-oplysningen.dk/euo_en/dkeu/referenda/. 79Europa.eu, The History of the European Union(last accessed Apr. 16, 2014), available athttp://europa.eu/about-eu/eu-history/index_en.htm. 80Europa.eu, The History of the European Union(last accessed Apr. 16, 2014), available athttp://europa.eu/about-eu/eu-history/index_en.htm; Treaty on European Union(1992), available athttp://eur-lex.europa.eu/resource.html?uri=cellar:d1b6b3e1-17dc-4d21-9a47-30b523bc1710.0023.02/DOC_1&format=PDF. 81Folketing,Danish EU Referenda(last accessed Apr. 16, 2014), available athttp://www.eu-oplysningen.dk/euo_en/dkeu/referenda/.


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promote laws where the normal legislative process is inhospitable to the measure.82For instance, the 1986 consultative referendum demonstrated popular support forthe Single European Act after the Folketing had been unable to muster sufficientsupport.83 Similarly, the 1992 referendum rejecting the Maastricht Treaty did sodespite its support by most of the political forces within the Folketing.84 In May of2014, Denmark will hold its next EU-related referendum to decide whetherDenmark should join the Unified Patent Court of the European Union.85

Optional referenda are also available to propose changes. For instance, anoptional rejective referendumthat is, one by which the electorate can reject anew lawis authorized under section 42 of the Constitution.86Optional rejectivereferenda have addressed issues of farm residence, national purchase rights, local

purchase rights, and nature conservation.87 When the Folketing passes a bill,legislators can request in writing that the bill be submitted to a referendum.88 The

request must be made within three weekdays from the bills final passage andsigned by at least one third of the members of the Folketing (that is, at least 60 outof the current 179 members).89

Once the President of the Folketing requests a referendum on a bill, theFolketing may withdraw the bill at issue within five weekdays of its final

passage.90 If unable to withdraw the bill, the Folketing must immediately notifythe prime minister, who must then publish the bill with a public announcement ofthe referendum.91 The referendum must then be held not less than twelve and notmore than eighteen weekdays after the publication of the Bill.92

82Palle Svensson,Denmark: The Referendum as Minority Protection,in THE REFERENDUM EXPERIENCE IN EUROPE33, Figure 3.1 (Michael Gallagher & Pier V. Uleri, eds.. 1996), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm. 83Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 49(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.84Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 4(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.85Henriette Jacobsen,Denmark Bundles Patent Court Referendum with 2014 EU Election, EURACTIV(Dec. 20,

2013), http://www.euractiv.com/eu-elections-2014/danish-government-confirms-eu-re-news-532513.

86DENMARK CONST. art. 42 (1953).87Palle Svensson,Denmark: The Referendum as Minority Protection,in THE REFERENDUM EXPERIENCE IN EUROPE33, Figure 3.1 (Michael Gallagher & Pier V. Uleri, eds.. 1996), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm.88DENMARK CONST. art. 42(1) (1953).89DENMARK CONST. art. 42(1) (1953).90DENMARK CONST. art. 42(3) (1953).91DENMARK CONST. art. 42(4) (1953).92DENMARK CONST. art. 42(4) (1953).


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The rejective referendum mechanism also protects legislative minorities:only one third of Denmarks legislators are needed to subject a legally bindingreferendum on a bill already passed by a majority in the parliament.93

Though not mentioned in the Constitutional Act, Danish law also authorizesad hoc referenda that are purely advisory in nature.94 And, as noted above, theFolketing can also elect to call consultative referenda.95 Since the adoption of thecurrent Constitution, only one consultative referendum has been held in Denmark:the referendum on the Single European Act, which was approved despite rejectionin the legislature.96

Whether referenda are required or restricted for particular subjectsDenmarks Constitution permits and even requires referenda on a wide range

of subjects. Referenda may also be used to approve any bill not falling within a

prohibited subject matter, as long as the procedural requirements of a rejectivereferendum are satisfied.97 Referenda can cover constitutional amendments,changes to the voting age, issues relating to the transfer of power to internationalauthorities, and the adoption of international treaties.

However, not all bills can be subjected to a referendum. DenmarksConstitution expressly forbids referenda for finance bills, supplementary and

provisional appropriations bills, government loan bills, bills to amend the lawsgoverning civil servants, salary and pension bills, naturalization bills, expropriation

bills, and taxation bills.98 As such, bills concerning public finance, welfare, andDanish citizenship are exempt from referendum. Additionally, to avoid breachesof international law, bills introduced to discharge existingtreaty obligations alsocannot be subjected to referendum.99

93Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 50(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.94

Folketinget, The Danish Constitutional Act and Referenda(Mar. 7, 2013), available athttp://www.eu-oplysningen.dk/euo_en/dkeu/referenda/constitution/.95Folketinget, The Danish Constitutional Act and Referenda(Mar. 7, 2013), available athttp://www.eu-oplysningen.dk/euo_en/dkeu/referenda/constitution/.96Palle Svensson,Denmark: The Referendum as Minority Protection,in THE REFERENDUM EXPERIENCE IN EUROPE33 (Michael Gallagher & Pier V. Uleri, eds.. 1996), available athttp://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm. 97DENMARK CONST. art. 42(1) (1953).98DENMARK CONST. art. 42(6) (1953).99DENMARK CONST. art. 42(6) (1953).


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The legal consequences of referendaIn Denmark, legally binding referenda are the norm, so the government is

generally obliged to implement laws approved by referendum.100 And although aconsultative referendum may not similarly obligate the Folketing, the outcome of aconsultative referendum can still be binding.101 For instance, the consultativereferendum in 1986 led to Denmarks accession to the Single European Act.102Thus, the line between consultative referenda and legally binding referenda inDenmark is not always clear.103

Timing considerationsThe time between calling and holding a referendum varies depending on the

referendums nature. The Danish Constitution provides that a referendum on a billfor constitutional amendment must be voted on within six months of its final

passage by the Folketing.104 This time period also applies to other mandatory

referenda. For instance, while the Danish prime minister called for the euroreferendum in 2000 in March of that year, the vote itself did not take place untillate September of 2000.105 On the other hand, the Constitution also provides that arejective referendum shall be held, in accordance with the decision of the PrimeMinister, not less than twelve and not more than eighteen weekdays after the

publication of the Bill.106

In practice, referenda are commonly held with other elections to conserveresources and improve efficiency. For instance, the 2009 Danish Act ofSuccession referendum took place at the same time as the June 7, 2009 European

100European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 20 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.101European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 20 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.102Institute for Democracy and Electoral Assistance,Direct Democracy: The International, available athttp://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf4 (2008); European Commission for

Democracy Through Law,Referendums in Europe An Analysis of the Legal Rules in European States, 20 (Nov. 2,2005).103European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 20 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 104DENMARK CONST. art. 88 (1953).105Michelle Ida Johnsen, Folkeafstemning Om Euroen Den 28. September 2000 (A Referendum on the Euro,September 28, 2000), FOLKETINGET(Jan. 2, 2013), available in Danish athttp://www.eu-oplysningen.dk/dkeu/dk/afstemninger/afstemning/2000/.106DENMARK CONST. art. 42(4) (1953).


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parliamentary election.107 The upcoming referendum on the Unified Patent Courtwill also coincide with the European parliamentary election on May 25, 2014.108

How authorities develop referendum ballot textsIf a majority vote against the challenged law or if it fails to secure a yes

vote in the specified time, the law is simply nullified.109 Unless the referendumrelates to an emergency law, Danish referenda are typically suspensive, whichmeans they approve or disapprove a law that has yet to take effect.110For asuspensive referendum, the text may not enter into force unless approved by thevoters or unless no referendum is requested within the time limit established by theConstitution or other law.111 A suspensive referendum is more likely to be rejected

because the vote involves a text that is not yet applied.112Referenda oninternational treaties are always suspensive to foreclose a breach of internationalobligations.113

How referendum campaigns are regulatedIn Denmark, no legislative or constitutional provisions regulate the funding

of referendum campaigns. This is important because financial support assists ameasures opponents and supporters in reaching the public and building support.Rather, an independent committee allocates public funds for referendumcampaigns, and the Danish Council for Adult Education, a nongovernmentalorganization, administers those funds.114

107Christian Httemeier, Vi Skal Stemme Om Trnoflgen (We Will Vote on Succession), POLITIKEN(Oct. 6, 2008),available in Danish at http://politiken.dk/indland/politik/ECE578392/vi-skal-stemme-om-tronfoelgen/.108Bart van Wezenbeek,Europe: Unitary Patent and UPC Progress, MANAGING INTELLECTUAL PROPERTY(Mar.28, 2014), available at http://www.managingip.com/Article/3324825/Europe-Unitary-patent-and-UPC-progress.html.109DENMARK CONST.art. 41(4) (1953).110European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 20-21 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 111European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules in

European States,COUNCIL OF EUROPE, 20 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.112European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 20 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.113European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 20-21 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 114Palle Svensson,Denmark: The Referendum as Minority Protection,in The Referendum Experience in Europe33,Figure 3.1 (1996), available at http://www.folkestyre.dk/english/White%20Papers/SVENSSON1.htm.


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Whether referenda are appealableIndividual citizens can appeal the outcome of a referendum in Denmark.115

Although some European states allow an appeal by any member of the electorate,Danish law requires the person challenging the law to have a legal interest.116

Voter qualifications and proceduresVoters qualify for referenda just as they do for a general election. Any

Danish citizen with a permanent residence in Denmark, Greenland, or the FaroeIslands and who is at least 18 years of age is entitled to vote in referenda.117 Avoter can be disqualified if he or she is legally declared incompetent, which isdefined as being incapable of conducting ones own affairs.118Although theConstitution provides that conviction and public assistance qualify as grounds fordisqualification, Denmark does not exclude current inmates from the vote.119

How the results of referenda are determinedIn Denmark, a majority of the participating votes in a referendum must

approve a proposed constitutional amendment. Furthermore, that majority mustconstitute at least 40 percent of the entire electorate.120 In other cases, the text putto the vote in a referendum is rejected if the majority of the participating voters isagainst it and the majority corresponds to at least 30 percent of the registeredelectorate.121 Voters can generally vote for or against a specific proposal in areferendum. This makes outcome determinations easier when voters are asked tochoose between only two alternatives on a referendum. But three or morealternatives on the ballotwhich is not unheard ofcan complicate the task ofinterpreting the results.122

Italy

Italys Constitution establishes the state as a Democratic Republic.123Referenda in Italy come in several varieties, and they can be initiated in several

115European Commission for Democracy Through Law,Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 25 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.116

European Commission for Democracy Through Law,Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 25 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e. 117DENMARK CONST. art. 29(1) (1953).118DENMARK CONST. art. 29(1) (1953).119DENMARK CONST. art. 29(2) (1953).120DENMARK CONST. art. 88 (1953).121DENMARK CONST. art. 42(5) (1953).122Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 54(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.


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ways. Italian law allows referenda to be called not only by the legislature, but alsoin response to popular petition.124 Referenda can be used to approve changes inregional borders, to amend the Italian Constitution, and to completely or partiallyabrogate existing laws.125 Laws in some substantive areas are exempt fromreferenda.126 Moreover, not all referenda are binding; some are merelyconsultative.127 Thus, while generally comfortable with referenda, Italysexperience with this mechanism is significantly different from that of Denmark.

How and by whose authority referenda are calledIn Italy, the authority to call referenda and the methods for carrying them out

depend on the type of referendum involved. Referenda may be initiated at thestate, community, regional, or municipal level.128

At the state level, under Article 138 of the Constitution, any laws amending

the Constitution must be approved by a simple majority in both houses ofParliament as well as by a majority of the popular vote.129 A referendum on theamendment is required if 500,000 voters, five regional councils, or one-fifth of themembers of a house of parliament request it.130 The request must come withinthree months of the constitutional amendment or challenged constitutional laws

publication.131However, if two-thirds majority of both houses of Parliamentapprove the constitutional amendment, the referendum does not go to the popularvote.132

123ITALY CONST. art. 1 (1947), available athttp://www.legislationline.org/download/action/download/id/1613/file/b4371e43dc8cf675b67904284951.htm/preview.124ITALY CONST. art. 75 (1947).125ITALY CONST. art. 75 (1947).126Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 189(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.127Ministero DellInterno,Referenda(last accessed Apr. 19, 2014), available athttp://www.interno.gov.it/mininterno/export/sites/default/en/themes/elections_and_referenda/Referenda.html.128European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 29 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.129ITALY CONST. art. 138(1)-(2) (1947); Ronald Erne,Direct Democracy in Italy, INITIATIVE &REFERENDUM

INSTITUTE EUROPE (last accessed May 1, 2014), available at http://www.iniref.org/italy.html.130ITALY CONST. art. 138(2) (1947);Law 352/1970, Norme sui referendum previsti dalla Costituzione e sullainiziativa legislativa del popolo (Standards for Referenda Provided for by the Constitution and Popular Legislative

Initiatives)arts. 11, 13 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig=.131ITALY CONST. art. 138(2) (1947);Law 352/1970, Norme sui referendum previsti dalla Costituzione e sullainiziativa legislativa del popolo (Standards for Referenda Provided for by the Constitution and Popular Legislative

Initiatives)art. 3 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .132ITALY CONST. art. 138(3) (1947).


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Also on the state level, the Constitution authorizes proposals to repealexisting laws, in whole or in part.133 Either five regional councils or 500,000 votersignatures can request this proposal process,134and a quorum of fifty percent ofeligible electors enables the proposal to pass.135 A notable feature of this initiativeis that explicit proposals for how the replacement law should read are not

permitted.136 Over the years, these types of referenda requests have dealt with arange of issues including: advertising, media ownership, party finance, drug laws,and electoral reform.137 However, the Constitution excludes referenda regardingtax or budget laws, amnesties, pardons, or ratification of international treaties.138The electorate and not the regional councils typically initiate referendainitiatives.139

At the regional and local level, the Constitution and relevant laws allow for

consultative referendums, which are non-binding advisory reports.

140

Regions cancall for referenda regarding regional laws and administrative decisions.141 Regionscan also initiate a repeal of a state law at the request of five regional councils.142Municipal Councils, which are the legislative assemblies for Italian municipalities,representing not less than one-third of the affected populations are responsible forcalling a consultative referendum.143 The majority of the municipal populationsmust then approve the request by popular vote.144

133Institute for Democracy and Electoral Assistance,Direct Democracy: An Overview of the International IDEAHandbook 15 (2008), available athttp://www.idea.int/publications/direct_democracy/upload/Overview_DDH_Eng_FINALFINAL.pdf.134ITALY CONST. art. 75(1) (1947).135Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 15, 189(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.136Institute for Democracy and Electoral Assistance,Direct Democracy: An Overview of the International IDEAHandbook 15 (2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.137Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 189(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.138ITALY CONST. art. 75(2) (1947).139European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 26 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.140

ITALY CONST. art. 132 (1947); Ronald Erne,Direct Democracy in Italy, INITIATIVE &REFERENDUM INSTITUTEEUROPE (last accessed May 1, 2014), available at http://www.iniref.org/italy.html.141Ronald Erne,Direct Democracy in Italy , INITIATIVE &REFERENDUM INSTITUTE EUROPE (last accessed May 1,2014), available at http://www.iniref.org/italy.html.142ITALY CONST. art. 75(1) (1947).143 ITALY CONST. art. 132 (1947).144ITALY CONST. art. 132 (1947);Law 352/1970, Norme sui referendum previsti dalla Costituzione e sulla iniziativalegislativa del popolo (Standards for Referenda Provided for by the Constitution and Popular Legislative Initiatives)art. 45 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig=.


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Whether referenda are optional or mandatoryItaly employs both mandatory and optional referenda. In most instances,

referenda are optional, occurring only if constitutionally designated politicalentities or a certain percentage of the electorate calls for one.145Additionally, onlyoptional referenda are available at the local level.146 Conversely, to affect anygeographical boundary changes whether merging or creating regions, consultativereferenda are mandatory.147 Gaining electorate approval at both the provincial andmunicipal levels is the first step towards changing a regions borders.148 Therequest then passes through parliament, where the decision is subject to the normalrigors of the legislative process for constitutional amendment.149

Whether referenda are required or restricted for particular subjectsAlthough the Italian Constitution provides for referenda in several

circumstances, it also restricts their use in certain areas. No law regulating

taxation, the budget, amnesty, or pardon, or any law to ratify international treaties,may be put to an abrogative referendum.150 Moreover, the Constitutional Court hasheld that abrogative referenda cannot be used to override constitutional provisionsor laws that can be assimilated to Italys constitutional law.151 Judicial review ofthe decision to submit or not submit a matter to referendum is available.152

Legal consequences of referendaThe legal consequence of a referendum depends on whether it is consultative

or abrogative. Additionally, constitutional referenda have immediate bindingaffect, regardless of the outcome.

145European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 10 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.146European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 38 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.147ITALY CONST. art. 138 (1947); see alsoEuropean Commission for Democracy Through Law,Referendums in

Europe An Analysis of the Legal Rules in European States,COUNCIL OF EUROPE, 129, 32, 37(Nov. 2, 2005),available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.148ITALY CONST. art. 132 (1947).149ITALY CONST. art. 133 (1947).150Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 189(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.151Claudio Rossano,Manuale di Diritto Pubblico, 117 (2012).152European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 24 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.


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The consultative referendum serves as advice to the government and is notlegally binding.153 If a consultative referendum to merge or create an officialregion is approved by a majority of voters in the affected areas, the Minister forHome Affairs must file a bill in the parliament within 60 days of the results

publication.154 If that amendment fails to pass, it cannot be reintroduced for fiveyears.155 Thus it is a necessary but not a sufficient step in the constitutional

process for modifying official regions.156 Italy has held one consultativereferendum on June 18, 1989, in order to consider increasing the EUs powers tocreate a European Constitution.157

Abrogative referenda are proposed in order to repeal a law at the statelevel.158 Where an abrogative referendum receives a majority of the vote, the

president issues a decree acknowledging the laws abrogation.159 The abrogation iseffective from the day following the decrees publication, although this term may

be extended by up to 60 days by the Council of Ministers.160 If an abrogativereferendum fails, it cannot be reintroduced for five years.161

Under Article 138 of the Constitution, no legal decision can be made onconstitutional amendments until a majority of the populations vote has beencast.162 Regardless of the majority votes to approve or disapprove theconstitutional amendment, the decision is legally binding.163

153Institute for International Law and Human Rights,A Comparative Look at Referendum Laws, 4 (Feb. 2009),available at http://lawandhumanrights.org/documents/complookreferendumlaw.pdf.154Law 352/1970 arts. 44-45 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .155Law 352/1970art. 45 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .156Law 352/1970art. 45 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .157Ronald Erne,Direct Democracy in Italy , INITIATIVE &REFERENDUM INSTITUTE EUROPE (last accessed May 1,2014), available at http://www.iniref.org/italy.html.158Ronald Erne,Direct Democracy in Italy , INITIATIVE &REFERENDUM INSTITUTE EUROPE (last accessed May 1,

2014), available at http://www.iniref.org/italy.html.159ITALY CONST. art. 87 (1947).160Law 352/1970 art. 37 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .161Law 352/1970art. 38 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .162Ronald Erne,Direct Democracy in Italy , INITIATIVE &REFERENDUM INSTITUTE EUROPE (last accessed May 1,2014), available at http://www.iniref.org/italy.html.163Ronald Erne,Direct Democracy in Italy , INITIATIVE &REFERENDUM INSTITUTE EUROPE (last accessed May 1,2014), available at http://www.iniref.org/italy.html.


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Timing considerationsA voter initiative or regional council may call for an abrogative referendum

between January 1st and September 30th, but not in the year before the expirationof either legislative house or in the six months after parliamentary elections.164Italys Court of Cassation must ascertain by October 31st that the call for thereferendum has no irregularities.165 The referendum requesters can appeal thedecision until November 20th.166 The Court of Cassation then rules on thelawfulness of the call of the referendum by December 15th and allows or rejectsthe call by February 10th of the following year.167 Finally, the president, followinga decision of the Council of Ministers, schedules the referendum for a Sunday

between April 15th and June 15th.168

The call for a consultative referendum must be filed within three months ofthe relevant regional authorities decision to merge.169 The Court of Cassation then

has 30 days to make a determination as to the legal validity and admissibility of thecall for referendum.170 The referendum requestors can appeal the decision.171 Ifthe Court of Cassation finds the call valid, the president, following a decision ofthe Council of the Ministers, schedules the referendum on a date within the threemonths following the publication of the referendum announcement.172

How authorities develop referendum ballot textsItalian law specifically prescribes the text to be used on referendum

ballots.173 For an abrogative referendum, the ballot reads, Do you want to

164Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 66(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.165Law 352/1970 art. 32 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .166Law 352/1970art. 32 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .167Law 352/1970art. 33 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .168Law 352/1970arts. 32-34 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .169Law 352/1970art. 42 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-

res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .170Law 352/1970art. 12 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .171Law 352/1970art. 12 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .172Law 352/1970arts. 42-44 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .173European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 33-34 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.


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abrogate [reference to the law or portion of the law to be abrogated]?174For areferendum for the creation or separation of a region, the ballot reads, Do youwant the Region of [name of the region] to merge with the Region of [name of theregion] so as to become a unique Region?175 For an amendment to the ItalianConstitution itself, the ballot reads, Will you approve the text of the law amendingSection [number of the section or sections] of the Constitution, concerning [subjectmatter], approved by the Parliament and published in Official Gazette number[reference to the publication of the proposed amendment] of [publicationdate]?176 Where the referendum proposes or amends another constitutional law,the ballot reads, Will you approve the text of the constitutional law [reference tothe proposed constitutional law], concerning [subject matter], approved by theParliament and published in Official Gazette number [reference to the publicationof the proposed amendment] of [publication date]?177 The question presentedmust be clear and non-leading.178

How referendum campaigns are regulatedItalian law at the state or regional level regulates informational programs and

political publications.179 The regulatory authority changes depending on whetherthe programming or publication occurs during an electoral period. During anelectoral period, the Supervisory Committee monitors the application of theseregulations just as it usually does for the Italian Broadcasting Company, whereasAgcom regulates private television and radio stations the rest of the time.180Regional authorities, such as the judiciary or special mechanisms in the regional

174Law 352/1970art. 27 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .175Law 352/1970 art. 41 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .176Law 352/1970art. 16 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .177Law 352/1970 art. 16 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .178European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 34 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.179

Law 274/2000, Norme sui referendum previsti dalla Costituzione e sulla iniziativa legislativa del popolo(Standards for Referenda Provided for by the Constitution and Popular Legislative Initiatives)(Italy, 2000)available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2000-08-28;274!vig= ;see alsoEuropean Commission for Democracy Through Law,Referendums in Europe An Analysis of the LegalRules in European States,COUNCIL OF EUROPE, 39 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.180Law 274/2000, Norme sui referendum previsti dalla Costituzione e sulla iniziativa legislativa del popolo(Standards for Referenda Provided for by the Constitution and Popular Legislative Initiatives)art. 2, para. 5 (Italy,2000) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2000-08-28;274!vig=.


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council, have jurisdiction over regional referendums; special branches of localauthorities have jurisdiction over local referendums.181

Judicial involvement may occur before, during, and after a matter issubmitted for referendum. In addition to the judicial review process discussedabove, where voter signatures are used to propose or pass a referendum, a specialoffice in the Court of Cassation is responsible for verifying them.182 Subsequently,the Constitutional Court verifies the results of that referendum, including aquestions substance and form.183

Whether referenda are appealableAll electors, including those who initiated the referendum, may appeal

decisions of the Court of Cassation regarding the referendum process to that samecourt.184 Additionally, the committee organizing a referendum can challenge those

decisions before the Constitutional Court for conflicts of attribution, which areconstitutional disputes over the allocation of powers between the state and theregions.185 Conflicts of attribution is grounds for appeal to the ConstitutionalCourt of a decision of the Court of Cassation concerning powers constitutionally orstatutorily provided. Decisions issued by the Constitutional Court are final.186

Voting takes place at designated public spaces.187 The Ministry of HomeAffairs oversees electoral monitoring committees that in turn supervise these

polling processes.188

181European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 39 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.182European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 25, 40 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.183European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 25, 40 (Nov. 2, 2005), available at

http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.184European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 25 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.185ITALY CONST. art. 134 (1947).186ITALY CONST. art. 134 (1947).187Law 352/1970art. 17 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .188Law 352/1970(Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .


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Voter qualifications and referendum proceduresAny citizen of legal voting age may vote in abrogative referenda, just as they

can in general elections for the lower house of the legislature.189 The right to votein consultative referenda for merging existing regions or creating new regions islimited to residents of the affected regions.190

How the results of referenda are determinedAn electoral quorum requirement applies to abrogative referenda. Thus, an

abrogative referendum passes only if a majority of eligible voters cast ballots andamajority of those votes are in favor of the referendum.191A consultativereferendum passes and the proposed constitutional revision is approved if amajority of votes are in favor of the measure.192 Unlike abrogative referenda, thereis no participatory quorum requirement limiting the validity of consultativereferenda.193

In contrast to local consultative referenda,194abrogative referenda arefrequently used in Italy.195 Since the first abrogative referendum took place in1974 and up until 2006, more than 60 votes have taken place.196They haveaddressed a variety of issues ranging from the status of trade unions to research onhuman embryos to television policy and even reform of the Italian party system.197

Sweden

Swedens legislative power rests with the Riksdag, the national assembly.198The Swedish Constitution and other statutory laws provide for direct participation

189ITALY CONST. art. 48 (1947).190Law 352/1970art. 42 (Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig= .191ITALY CONST. art. 75 (1947).192Law 352/1970(Italy, 1970) available in Italian at http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1970-05-25;352!vig=.193Claudio Rossano,Manuale di Diritto Pubblico, 117, 132 (2012).194Roland Erne,Director Democracy in Italy,inDirect Democracy in Europe: A Comprehensive Reference Guideto the Initiative and Referendum Process in Europe(last accessed Apr. 19, 2014) (Bruno Kaufmann and M. Dane

Waters, eds.), available at http://www.iniref.org/italy.html.195European Commission for Democracy Through Law, Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 41 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.196Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 66(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.197Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 66(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.198SWEDEN CONST. chapter 1, art. 4 (1974), available athttp://www.equalrightstrust.org/ertdocumentbank/CONSTITUTION%20OF%20SWEDEN.pdf.


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of citizens in lawmaking through national and local referenda. Three categories ofreferenda are available in Sweden: (1) national referenda on constitutionalamendments; (2) national referenda on non-constitutional matters; and (3) localreferenda at the regional and municipal level. Each category is subject to its ownset of rules.199

How and by whose authority referenda are calledThe authority to call a referendum is restricted to lawmaking assemblies.200

Thus, only the Riksdag may call a national referendum, and only the regional ormunicipal councils may call a local referendum, although citizens may request thatthe council consider a local referendum.201 Voters can also influence thelegislative process by organizing agenda initiatives, which are non-binding.202 Fornon-constitutional issues, the Riksdag may call a national referendum by a specialact announcing the question to be voted on and the date of the vote.203

Though never employed, the Swedish Constitution has permitted referendaon constitutional amendments as an alternative to the standard amendment processsince 1979.204 Under this process, constitutional amendments require the Riksdagto adopt the amendment with identical wording in two successive decisions.205The Riksdag makes the first decision when the amendment is proposed, and thenewly elected Riksdag makes the second decision following the next generalelections.206 The drafters established this identical decisions requirement to ensure

199Sveriges Riksdag,Referendums (Jan. 4, 2012), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/.200See Sveriges Riksdag,Referendums on Constitutional Issues(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/;see also Sveriges Riksdag, Consultative Referendums(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Consultative-referendums/.201Sveriges Riksdag,Referendums (Jan. 4, 2012), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/.202Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 10(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.203

Act on National Referenda sec. 18 (Sweden, 1979), available athttp://www.val.se/pdf/act_on_national_referenda.pdf; Riksdag, Riksdag, Consultative referenda(last accessed Apr.16, 2014), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Consultative-referendums/. 204Erik Moberg,Positive and Normative Aspects of Direct Democracy The Case of Sweden in a General Context,MOBERG PUBLICATIONS(last accessed Apr. 16, 2014), availble athttp://www.mobergpublications.se/printed/direct.htm ; see alsoRegeringskansliet, The Constitution of Sweden4(2013), available at http://www.government.se/content/1/c6/22/15/79/270c172d.pdf.205SWEDEN CONST. chapter 8, art. 16 (1974).206SWEDEN CONST. chapter 8, art. 15 (1974).


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that fundamental questions are settled with broad support.207

The process for constitutional amendment referenda is quite long. First, 35members of the Riksdag submit a proposal to change the Constitution.208For the

proposal to move forward, at least one third of the Riksdag must vote in favor ofthe proposed referendum.209 If the proposal succeeds, the next referendum requiresa majority vote at the next parliamentary election.210 Once the proposal receivesthe votes, it may then be submitted to the public for a vote.211However, theoutcome is binding only if the electorate votes againstthe proposal.212 Therefore,the Riksdag, by a simple majority, may reject the proposal even after the majorityof the electorate votes in favor of the referendum.213

At the local level, the Municipal Referenda Act of 1994 authorizes localcouncils to hold local referenda or opinion polls to gain public viewpoints on

issues that the council discusses at its meetings.214 Although the final decision tocall a referendum rests with the local assembly, citizens may request a localreferendum and put it on the local assemblys agenda.215 If at least five-percent ofthe local electorate supports a referendum, the local assembly is obligated toconsider whether to hold a referendum.216

207Sveriges Riksdag, The Constitution of Sweden: The Fundatmental Laws and the Riksdag Act9-10 (2012),available for download at http://www.riksdagen.se/PageFiles/Dokument/bestall/svenska/the-constitution-of-sweden.pdf.208Sveriges Riksdag,Referendums on Constitutional Issues(Jan. 4, 2012), available at

http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/.209Sveriges Riksdag,Referendums on Constitutional Issues(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/.210Sveriges Riksdag,Referendums on Constitutional Issues(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/.211Sveriges Riksdag,Referendums on Constitutional Issues(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/.212Sveriges Riksdag,Referendums on Constitutional Issues(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-

issues/.213Sveriges Riksdag,Referendums on Constitutional Issues(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/.214Local Government Actch. 5, sec. 34, (Sweden, 2004), available athttp://www.government.se/content/1/c6/02/95/35/ca584fee.pdf.215Local Government Actch. 5, sec. 23 (Sweden, 2004), available athttp://www.government.se/content/1/c6/02/95/35/ca584fee.pdf. 216Local Government Actch. 5, sec. 23 (Sweden, 2004), available athttp://www.government.se/content/1/c6/02/95/35/ca584fee.pdf.


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Whether referenda are optional or mandatoryIn Sweden, all referenda are optional and consultative.217 Thus, the Riksdag

and local assemblies are never required to submit an issue to a referendum.218Even in the case of an initiative by five-percent of the electorate in favor a localreferendum, the local assembly retains the option not to hold the referendum.219 Infact, despite more than 150 citizen agenda initiatives, only 12 local referenda took

place between 1994 and 2011.220 The practical impact of citizen agenda initiativesdepends primarily on the will of the political majority in the local council.221

Nevertheless, local referenda have become de facto mandatory for some issues,such as municipal borders and road pricing schemes.222 Only a total of sixconsultative national referenda have been held in Sweden.223

Whether referenda are required or restricted for particular subjectsNeither the Constitution nor other laws exclude particular subject matters

from referenda. Nevertheless, national referenda relating to constitutionalamendments are subject to the specific procedure described in the previoussection.224 At the municipal level, five-percent of the electorate in a municipalitycan trigger the referendum process.225 The municipal or county council mayrestrict the referendum to a certain part of the municipality or county.226At thelocal level, issues submitted to a popular vote must generally fall within the

purview of regional or municipal authority.227

217Sveriges Riksdag,Referendums (Jan. 4, 2012), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/.218Sveriges Riksdag,Referendums (Jan. 4, 2012), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/.219Local GovernmentActch. 5, sec. 23 (Sweden, 2004), available athttp://www.government.se/content/1/c6/02/95/35/ca584fee.pdf. 220Bruno Kaufmann, Sweden: Better Late Than Never. Towards a Stronger Initiative Right in Local Politics, inLOCAL DIRECT DEMOCRACY IN EUROPE254, 257 (Theo Schiller ed., 2011).221Bruno Kaufmann, Sweden: Better Late Than Never. Towards a Stronger Initiative Right in Local Politics, inLOCAL DIRECT DEMOCRACY IN EUROPE254, 257 (Theo Schiller ed., 2011).222Bruno Kaufmann, Sweden: Better Late Than Never. Towards a Stronger Initiative Right in Local Politics, inLOCAL DIRECT DEMOCRACY IN EUROPE254, 261 (Theo Schiller ed., 2011).223

Swedish Institute, The Swedish System of Government, SWEDEN SVERIGE(2013-14), available athttp://sweden.se/society/the-swedish-system-of-government/.224SWEDEN CONST. ch. 8, art. 16 (1974).225Sveriges Riksdag,Referendums (Jan. 4, 2012), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/.226Sveriges Riksdag,Referendums (Jan. 4, 2012), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/.227European Commission for Democracy Through Law,Referendums in Europe An Analysis of the Legal Rules inEuropean States,COUNCIL OF EUROPE, 32 (Nov. 2, 2005), available athttp://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2005)034-e.


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Legal consequences of referendaReferenda are not usually binding in Sweden, except to a limited extent for

referenda on constitutional issues. The Constitution expressly provides thatnational referenda are consultative, so the Riksdag may decide not to follow thereferenda results.228 For instance, in 1963, the Riksdag passed a law changing theroads from left-hand driving to right-hand drivingdespite a 1955 referendumrejecting this change.229 Although legislative provisions regarding local referendaare not as well defined, they are also considered consultative, and act as a methodto gauge public opinion from regional or municipal electorates.230The decision-making power, however, remains with the Riksdag for national referenda and withthe local assemblies for local referenda.231 Although, in practice the outcomes ofconsultative referenda are increasingly viewed as binding, especially at the nationallevel where political parties often commit to accept the voters will before thereferendum.232

In constitutional referenda, a referendum decision is only binding if amajority of the voters vote against the referendum.233 In addition, at least half ofthe voters who rejected the referendum must have participated in the parliamentaryelection.234 An electoral quorum requirement poses an additional hurdle.235 Anamendment is officially vetoed in a referendum only if a majority of electoratevotes cast were against the proposal andif this majority exceeds half the number ofvalid votes registered in the simultaneously held legislative elections.236 If theresult of the referendum favors the constitutional amendment, the standard

procedure applies whereby a simple majority in the Riksdag may accept and pass

228SWEDEN CONST. ch. 8, art. 2 (1974).229Institute for Democracy and Electoral Assistance,Direct Democracy: The International IDEA Handbook 50(2008), available at http://www.idea.int/publications/direct_democracy/upload/DDH_inlay_low.pdf.230Local Government Actch. 5, sec. 34 (Sweden, 2004); Riksdag,Referendums(Jan. 4, 2012), available athttp://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums. 231Riksdag,Referendums(Jan. 4, 2012), available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums. 232Bruno Kaufmann, Sweden: Better Late Than Never. Towards a Stronger Initiative Right in Local Politics, inLOCAL DIRECT DEMOCRACY IN EUROPE254, 260 (Theo Schiller ed., 2011); Riksdag,Referendum(Jan. 4, 2012),

available at http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendumsl;see alsoSverigesRiksdag, The Constitution of Sweden: The Fundamental Laws and the Riksdag Act29 (2012), available fordownload at http://www.riksdagen.se/PageFiles/Dokument/bestall/svenska/the-constitution-of-sweden.pdf.233Riksdag,Referendums on constitutional issues, http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/ (last accessed Apr. 16, 2014). 234Riksdag,Referendums on constitutional issues, http://www.riksdagen.se/en/How-the-Riksdag-works/Democracy/Referendums/Referendums-on-constitutional-issues/ (last accessed Apr. 16, 2014). 235Erik Moberg,Positive and Normative Aspects of Direct Democracy The Case of Sweden in a General Context,MOBERG PUBLICATIONS, http://www.mobergpublications.se/printed/direct.htm (last accessed Apr. 16, 2014).236SWEDEN CONST. chapter 8, art. 16 (1947).


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the proposal.237

Timing considerationsWhile constitutional referenda must coincide with legislative elections, other

referenda may take place at any time.238 Constitutional referenda are conducted inconjunction with the legislative elections following the first decision of theRiksdag.239 The election must be held at least nine months after the amendmentwas first submitted to debate in the Riksdag.240 However, a five-sixths majorityvote of the Riksdags Constitutional Committee can grant an exemption to thisrule.241

National referenda on non-constitutional issues do not have to coincide withgeneral elections.242 While no particular rules dictate the length of time betweencalling and holding national referenda, the Riksdag must specify the date of the

vote in the special act by which it calls the referendum.243 The Central ElectionAuthority is responsible for informing the public on the timing of referenda.244Several referenda may be administered on the same date.245

How authorities develop referendum ballot textsThe Riksdag drafts and determines the final ballot text for all national

referenda.246 The Central Election Authority is then responsible for informing thepublic of the wording for the proposal submitted to referendum.247 The ballot text

237Erik Moberg,Positive and Normative Aspects o

Documents

Regulating Referenda in Europe