Legal Design

Making direct democracy tools that work depends on both, their legal design (2) and the overall quality of the existing democracy (1).

(1) Democratic procedures can only function to the extent that the conditions for democracy are met.

These conditions include, among others:

  • Democratic citizens, that is people, which have internalised the democratic principle and are acting accordingly, as individuals and collectively.
  • Public support and infrastructures (like democracy centers and a basic income) that enable people to take part in politics as citizens.
  • A society operating under the rule of law, protection of the constitution and fundamental human rights.
  • A free public sphere and independent media, which provide citizens with all the necessary information and fulfill their role as watchdogs of the powerful.
  • Education for democracy, a constant dialogue between theory and practice, between what democracy should be (ideal) and what it actually is (reality).
  • Institutionalised self-criticism of democracy, research and development of democracy.
  • An economy that is subordinated to democracy.


(2) The legal design should be based on democratic principles. The aim is to create tools (procedures) for putting democracy into practice. These procedures should ensure that the people can form their political opinion and will freely and express it in a way that everyone can understand. Everything should be done to foster such a democratic process, and nothing to hinder it.

Poor legal design leads to poor usability. This creates frustration and missed opportunities, not a stronger democracy. Badly designed procedures may defeat the purpose for which they were originally made. To replace them is usually a difficult task, as many examples from Germany and elsewhere show.

The presence of well-designed direct democracy as such is significant and has effects (See Functions and Effects), but how frequently direct democracy is used depends, besides user-friendliness, on other factors as well. A comparison between the cantons of Switzerland, which all provide user-friendly tools, shows that initiatives and referendums are used more often in societies which are complex and conflict-ridden, than in smaller and simpler societies (cf. Adrian Vatter. 2002. Kantonale Demokratie im Vergleich. Opladen).

Direct Democracy: Making It Work

Number of Signatures

Question How many signatures of eligible voters are required in order to hold a referendum vote?

Experience International experience shows that large signature quorums (more than 5% of eligible voters) deter the majority of individuals and organisations from using the instruments of the citizens’ initiative and the citizen-initiated referendum. Only strong and well-organised actors are able to take such high hurdles. Very high hurdles (10% or more) make these instruments unusable for most actors. Uruguay seems to contradict what has been said. It has a well established and working direct democracy despite the fact, that citizens’ initiatives require a signature quorum of 10% of the eligible voters and citizen-initiated referendums even 25% (note: 2% within 150 days the rest in the form of an election). However, such high hurdles severly limit the applicability of these instruments. In Switzerland, where the signature quorums are much lower (2% for a citizens’ initiative, 1% for a citizen-initiated referendum), more than ten times more national popular votes were held between 1985 and 2011 than in Uruguay.

Recommendation Depending on the particular instrument (e.g. constitutional initiative, citizen-initiated referendum) and political level (local, regional, national, transnational), the entry quorums should be lower than 5% and preferably not more than 2% of the total eligible electorate.

Time Allowed for Collection of Signatures

Question How much time is allowed for signatures to be collected?

Experience Communication is at the heart of direct democracy. Getting informed, public debates, collective learning need sufficient time. So the time allowances for collecting signatures must reflect this. If the periods are too short e.g. only 3 months for nationwide signature collection, this blocks the crucially important processes of communication, that is the free formation of political opinion and will.
The so-called European Citizens’ Initiative, which is in actual fact an agenda setting initiative, requires the collection of one million signatures (called statements of support) on paper and/or online in 12 months.

Recommendation For launching a nationwide citizens’ initiative, there should be at least 12 months. For a citizen-initiated referendum, 2–4 months should be sufficient, as the referendum issue is already on the political agenda.

How the Signatures are Collected

Question Is there free (uncontrolled) collection of signatures with subsequent official verification – or does the signature-giving have to take place at designated official centres and/or be officially monitored?

Experience In many countries the authorities want to restrict the options for signature collection or check the eligibility of the signatories before they sign. In Austria, signatures for popular initiatives can only be given in official centres. In the USA, collecting signatures in public places, such as at the post office, is actually forbidden. In Uruguay for a citizen-initiated referendum the signatures of 2% of the whole electorate must be collected freely within 150 days, the rest of the signatures is collected in the form of a vote: the voters who want to support the referendum request are called to do that on a Sunday 45 days after the publication of the valid request.

Recommendation A well-developed direct democracy does not require any special restrictions on signature collection: it is sufficient to check the legitimacy of the signatures. Signature collection ought to be organised in a way that encourages debate and makes it easy for people who wish to sign to do so. Online signature collection will become a standard procedure; it remains to be seen what effects this will have on communication and the whole process.

How the Citizens’ Initiative is Worded

Question Does the wording of the initiative proposal presuppose special legal knowledge, or can the proposal be submitted in clear and ordinary language?

Experience In Switzerland, a specific initiative proposal can be formulated in normal language, requiring no knowledge of legalese. Any title can be chosen as long as it is not misleading, does not cause confusion or contain commercial or personal advertising. The appropriate authorities assist the initiative sponsors with the formal questions, but have no input into the content.

Recommendation The authorities should advise the citizens in the launching of an initiative with the aim of ensuring that the latter are enabled to express their political will freely and clearly and in a way which everyone can understand. Two things are required: that the authorities do not interfere with the content; and that the text is clear, comprehensible, unambiguous and consistent. Any kind of specialist jargon would be unsuitable.

How the Referendum Question is Worded

Question Who decides how the referendum question is worded? Is the title of the initiative or of the law repeated in the question?

Experience In Switzerland, the referendum question contains the title of the initiative or law which is being subjected to ballot.

Recommendation The title of the proposal should be included in the referendum question, so that the voters know precisely what they are voting on. The question should also be formulated in such a way that it is clear whether a “yes” vote means approval or rejection of the proposal. The referendum question may not be misleading, as this makes it impossible to ascertain how the voters actually intended to vote.

Formal Requirements and Validity

Question What procedure exists for checking that the initiative satisfies the formal legal requirements and the rules regarding content?

Experience The validity of the content of the initiative can be checked by one of the organs of state (parliament, authorities, courts). There is disagreement over which procedure is preferable – whether it should be parliament or the constitutional court which decides on the validity of an initiative. In Switzerland the formal requirements are checked by the Federal Chancellery before collection of signatures and the validity of the content is decided by parliament after the required 100,000 signatures have been collected. In the U.S., this happens before the signature collection starts. Procedures vary: in Florida, it is the State Supreme Court which checks validity, whereas in Oregon it is the Attorney General. In Land Berlin validity is decided by the president of the parliament; against her decision there is a right of appeal.
Recommendation The validity and formal rules (e.g. that the initiative must not contravene binding international law; that it may not include several different issues; that it must be unambiguous in form) must be clear, transparent and legally defined. It is preferable that the validity check is carried out before signature collection. It can be performed by a constitutional court or by one of the political organs of state – by parliament, or by one of the authorities. In the latter case there should be a right of appeal. Whatever solution is chosen, how great a risk exists that the body charged with checking the initiative might fail to be impartial is more a question of the political culture and cannot be entirely “designed out”.

Interaction with Government and Parliament

Question Is parliament able to debate the subject-matter of a citizens’ initiative and make its own recommendation? Does parliament have the right to present a counter-proposal? Does the interaction between the sponsors of the initiative and either parliament or the government allow space for negotiation and compromise? Is there a withdrawal clause?

Experience In California, initiatives bypass parliament and are put directly to the voters. There is no such “direct initiative” in Switzerland, only an “indirect” one, which includes the government and parliament in the initiative process; they express a view on every referendum issue, take part in the public debate, and parliament can make a counter-proposal to a citizens’ initiative. The indirect initiative thus produces greater public discussion and it is possible to create a space in which government and parliament are able to negotiate with the initiative/citizens’ committee and reach a possible compromise solution. In order to facilitate this negotiating space, a withdrawal clause was introduced in Switzerland.

Recommendation Direct and indirect democracy should be linked in a way which strengthens both. This can be achieved, for example, by making it obligatory for parliament to consider popular initiative proposals and express an opinion, and by giving parliament the right to make counter-proposals. Where there is both an original initiative proposal and a counter-proposal to be voted on, the voters should be able to vote “yes” to both proposals and, in addition, indicate which of the two they prefer if both are approved (the so-called “double yes”). A withdrawal clause gives citizens the chance of withdrawing their initiative if, for example, they have managed to reach an acceptable compromise with the government and parliament. This creates a manoeuvring space for negotiations and compromise which both citizens and the authorities can take advantage of.

Time allowed for government and parliament to express an opinion, and for the referendum campaign

Question How much time is allowed to the government, the parliament and the voters to debate and reach a considered opinion on an initiative or referendum proposal? How much time should be allowed for the referendum campaign?
Experience Involving all the parties to a referendum vote in an exchange of views, in dialogue, negotiations and a collective learning process takes time. This must be taken into account in setting the statutory time periods.

Recommendation The basic rule is: there must be adequate time allowed for all the stages of an initiative or referendum process – for the initiative committee to collect the required signatures, for the government to express a view on the proposal, for parliament to debate the issue and possibly work out a counter-proposal, for all the individuals and groups involved to carry out a proper referendum campaign.

Approval and turnout quorums

Question Does approval require a qualified majority and/or a minimum turnout quorum, or is a simple majority of the voters sufficient?

Experience The satisfaction of turnout or approval quorums is often demanded to validate popular votes, whereas there is no minimum turnout requirement for parliamentary elections. In practice, turnout quorums often lead to the result of a referendum being annulled. Italy provides ample evidence for this: many referendums failed because the voter turnout was less than the required minimum of 50% + 1 vote. Many of these failed not least because leading politicians and occasionally representatives of the church had called on the voters to boycott the referendum. For example, Prime Minister Craxi (1991) and Berlusconi (2011) openly encouraged their compatriots to “go to the beach” and not to the ballot box. All in all, turnout and approval quorums are in principle undemocratic. Instead of promoting public debate and citizen participation they encourage campaigns to boycott referendums. Quorums may turn a democratic tool into its opposite, an instrument that potentially weakens democracy.

Recommendation Turnout and approval quorums should be avoided. Such quorums mean that the proposal can be rejected by a combination of “no”-votes and non-votes; they assist those groups which refuse to get involved in a public democratic debate and instead call for the ballot to be boycotted. This promotes undemocratic behaviour.

Exclusion of Issues

Question What issues may – or may not – be decided direct-democratically?

Experience In many countries, important issues are withheld from direct-democratic decision-making. For example, in Germany, where direct democracy exists on the local and regional level, citizens may have no voice in matters of taxation and public expenditure. More generally, citizens’ initiatives which have significant financial implications are not allowed (this is the so-called “finance taboo”). The implementation of the “finance taboo” varies throughout Germany and is often the subject of court cases. In addition, matters in the competence of the Bundestag (national parliament) are also excluded from direct democracy. The exclusion of important issues severely limits the scope and importance of direct democracy and blocks positive effects.
In Switzerland, no subject is in principle excluded from direct-democratic procedures. However, initiatives which contravene binding international law must be declared invalid. After the ban on building minarets in 2009, debates about how to strike a balance between democracy and fundamentsl rights intensified. In actual practice, the following three subject areas are the main focus of direct-democratic activity: 1. The form of state and democracy; 2. Financial and tax policy; 3. Welfare and health provision.

Recommendation Citizens should be able to decide on the same range of issues as their elected representatives. Creating special exclusion lists for initiatives and referendums contradicts the democratic principle of equal participation in politics. The limits imposed on democratic decisions by fundamental human rights and international law apply equally to parliamentary and direct-democratic decisions.

Supervision and Support

Question Is there provision for supervision of initiative and referendum processes? Is there an independent authority which has this specific task? Is there a support infrastructure for direct democracy?

Experience In order to guarantee the fairness and correct handling of popular vote procedures, some countries (e.g. Ireland) have instituted referendum commissions. The duties and powers of these commissions vary. In Ireland a referendum commission which oversees the campaigns is created for each new referendum. In Switzerland, the federal referendum procedures are looked after by the Federal Chancellery. The “Political Rights” section of the Chancellery “advises initiative and referendum committees, checks submitted signature lists and popular initiatives, organises the federal referendums and the elections to the National Council, and deals with complaints about elections and referendums”. It is also responsible for testing electronic voting. Citizen participation needs material, financial and other support, and time. However, there is very little understanding for such needs and in practice citizen participation is hardly encouraged.

Recommendation A referendum authority or commission can have a variety of duties, such as advising initiative committees, making a preliminary examination of the initiative proposal, authenticating signatures, supervising the referendum campaign (including checking for fairness and equality), as well as the monitoring and evaluation of referendums. It can also be charged with the task of informing the voters; the minimum should be to send a referendum booklet to each eligible voter. However, much more should and could be done to support real citizen participation, that is democracy. For example, in each community there could be a democracy center at the disposition of the citizens for meetings, campaigns, debates et cetera, and also to support and assist them in exercising their sovereignty. A guaranteed basic income for all would be another crucial element in support of active citizenship.

Financing and Transparency

Question Do parties and groups have to reveal how much money they spend on a referendum campaign, and where the money comes from? Do groups without access to significant financial resources receive any support funding to make the referendum process more equal?

Experience The important role of money in initiatives and referendums is generally recognised: money can be one of the decisive factors. Fairness in both the private and state/public spheres is a fundamental precondition for the democratic forming of political will. There are, however, considerable difficulties in regulating it. Where, for example, does the boundary between genuine information and propaganda lie? How is it possible to ensure the availability of balanced, accurate information? What is the role of the government and the authorities in this? In Switzerland it has not so far been politically possible to improve the fairness of the electoral and referendum process. In many referendum campaigns, basic resources such as money, organisational strength and sophistication, time and media influence are still very unevenly distributed. Above all there is a lack of transparency. Political parties receive no public funding and there is virtually no public support for initiative and referendum campaign groups whose efforts on behalf of the wellbeing of society are extremely important.

Recommendation Citizens have a right to be fully informed and to have a balanced and impartial referendum debate. Without accurate information, public monitoring and control of the government is impossible, allowing the latter to remain unaccountable. In a democracy, information is a vital public good to which the public has a permanent and constantly renewable claim. Transparency (e.g. information on the source of funding) and fairness (e.g. equality of financial resources and equality of access to the public through the media and advertising) are important to ensure the genuinely democratic formation of the political will. Citizen participation, if it is to be encouraged and sustained, must be supported materially, financially and otherwise. For example, it is possible to support citizens’ initiatives by having a portion of their expenses refunded once the required number of signatures has been collected and the referendum date set.

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