October 1: by a few decimal points

“If 48% of electors are in favour of a proposal, 5% are against it and 47% intend to abstain, the 5% of opponents need only desert the ballot box in order to impose their viewpoint, even though they are very much in the minority. [...] Encouraging either abstention or the imposition of a minority viewpoint is not healthy for democracy”. This explanation of why it does not seem reasonable to set a turn-out quorum in a referendum is a verbatim quote from item 51 of the Code of Good Practice on Referendums approved by the Venice Commission in 2007. The document states that “based on its experience in the area of referendums, the Venice Commission has decided to recommend that no provision be made for rules on quorums”.

The example provided speaks volumes. It is unusual for a democracy to see a call to abstention as a means to win a vote, but it can happen if the rules of the game provide an incentive to do so, as is often the case in Italy where turnout was below the required 50 per cent mark in 40 per cent of the 67 abrogative referendums that have been held since 1974. In all but one of those instances there was a Yes win, but the result was void because the No camp actively encouraged abstention. A collateral effect of deserting the ballot box when a quorum has been set is that casting a vote may be perceived as taking a political stand, which clearly hinders the secrecy of voting and, ultimately, the freedom to vote.

At any rate, when “guarantees” apropos the Venice Commission are demanded in the debate on Catalonia’s independence referendum slated for October 1, the case of Montenegro often comes up. A 50 per cent quorum and a 55 per cent majority win were set for Montenegro’s referendum, with the alleged endorsement of the Commission. We would be advised to remember, though, that in its report on Montenegro the Venice Commission merely stated that the rules of the quorum proposed by Javier Solana (the EU’s High Representative for the Common Foreign and Security Policy at the time) to ensure that the European Union would recognise the result did not conflict with the constitutional practice, particularly if you consider that a 50 per cent quorum was usually the norm in the former Yugoslavia. But it was a unilateral imposition by the High Representative and the government of Montenegro did not acknowledge it. What would have happened if secession had won by 54 per cent of the vote instead of 55.5? The ensuing political crisis triggered by Mr Solana would have been unheard of. As the Venice Commission readily admits: “If a text is approved –even by a substantial margin– by a majority of voters without the quorum being reached, the political situation becomes extremely awkward, as the majority will feel that they have been deprived of victory without an adequate reason”.

The other “guarantees” that are often mentioned, allegedly quoting the Commission, are that a referendum must be held in accordance with the Constitution and that the law that regulates it should have remained unaltered for at least one year prior to the vote. Indeed, the Commission has established both conditions and the two make sense.

Firstly, we only need to remember that the full name of the Venice Commission is European Commission for Democracy through Law and its members are states. Secondly, if the rules of the game are changed shortly before a referendum, this might be detrimental to its credibility.
However, in an independence referendum it is hard to meet these requirements, particularly when the state does not endorse the vote. In other cases, they are not always met, either. To name an example of a referendum held in a western country “with guarantees”, Quebec’s independence referendum was tolerated but not sanctioned by Canada’s federal government and the country’s Supreme Court only examined the issue of constitutionality three years later. In Scotland the referendum law was indeed agreed upon and eventually approved, with all the conditions (roll, etc), a year prior to the vote.

Independence referendums tend to have a higher turnout and a clear majority win, which is logical, but not in complex societies where statehood is just another political option of many, particularly in a globalised world with supranational political structures. We have seen this again in Quebec and Scotland. In Quebec, the No camp won the first referendum with 50.6 per cent of the vote, and the second with a 55.3 per cent. But we have seen many other examples of tight results in successful societies. The Yes vote that green-lighted devolution in Wales (1997) received a scanty 50.3 per cent of the ballot; in France the Maastricht Treaty was ratified with a 50.8 per cent. In Corsica those who opposed the granting of regional powers won the referendum with 51 per cent of the vote (2003). And Brexit won by 51.9 per cent. In all these examples (and there are more), the democratic victory was obtained by a narrow margin, even by only a few decimal points.