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The Right Referendum

It is important that the wording of referendums is clear as the results are legally binding. The way the question is phrased can also have significant affects on how people vote.

There are a number of mechanisms that may be employed to minimise or eliminate the sorts of issues which arise from a referendum being poorly worded. In some states in the USA proposed initiatives are subject to review by the attorney general's office or some other office delegated to do this. This can be done before the initiative is circulated so problems can be worked out in advance. In some states the originators of the initiative are not required to take legal advice and the initiative goes directly to referendum without review. This can cause problems because referendums can be passed that are unconstitutional or do not comply with existing human rights legislation so after voters have been put to the expense and inconvenience of organising a referendum the result is struck down by the courts.

Americans are well aware of the problem and a survey in California in 2001 asked if voters would favour or oppose a system of review of proposed initiatives to avoid drafting errors and problems with ballot language. 77% favoured a review, 15% opposed review and 8% responded as don't know.

The type of review system adopted is also important. When an initiative is required to pass judicial review as it is in some American states that review can be subject to political manipulation.

In Switzerland advice is available and the Swiss require each referendum question to address a single issue only.

Research has shown that one of the most important issues is the drafting of the referendum question and that the assistance of an advisory body on referendum wording is useful. We have a precedent in the UK where the wording of the Brexit referendum was set by the Electoral Commission and it could be that we would want proposers of initiatives to seek and accept advice on the wording of referendums.

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