posted by Gerard Magliocca
Greetings from blogging exile! For one post at least . . .
I’ve been thinking about the British practice of submitting substantial questions to the voters in a non-binding referendum. For example, the issue of whether Britain should join the European Union, or whether seats in the House of Commons should be allocated via proportional representation. While these national votes have no legal effect, they are treated as extraordinarily important and (if decisive) are expected to lead to action by Parliament.
Let’s suppose we wanted to try that in the United States. There’s major legislation pending in Congress, for example. Congress then passes a law stating that there shall be a non-binding referendum on this bill on a certain date. Is that constitutional? In other words, does Congress have the power to require states to put something on their ballot or hold a special election (i.e., not on a primary or general election day)?
I think that the answer is no, unless you think the fact that this is non-binding creates a relevant distinction. But if enough states agree to hold the referendum, either on their own or because Congress gave them money, would those that object feel pressure to cave to avoid being left out of the result?