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Criteria Justifying Recounting or Revoting in Democracy post-Brexit

Highlighted by the case of the UK referendum (Part #1)


Introduction
Eligibility to vote
Criteria of democratic fairness in voting
Democracy from a future perspective?
Criteria for electoral recount
Criteria for revoting: repeating an election or referendum
Challenging applicability of electoral claims to other issues
Dubious rejection of electronic voting

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Introduction

It is unclear what systematic consideration is publicly given to the criteria of democratic fairness in referenda and other elections. Little has been said in this respect with respect to the process of Brexit -- the democratic decision of the UK to leave the European Union. In the course of protests regarding that result, it was announced that an even closer result in a major presidential election in Austria had led to a decision to hold the election again.

In the case of Brexit, it is being widely asked (at the time of writing) whether the referendum vote was fair (Petition for second EU referendum reaches 4 million, The Telegraph, 29 June 2016; Are you protesting against Brexit this weekend? The Guardian, 1 July 2016).

There is also doubt as to whether the outcome has been finally and formally decided (Patrick Wintour, UK voted for Brexit -- but is there a way back? The Guardian, 29 June 2016; Philip Allott, Forget the politics -- Brexit may be unlawful, The Guardian, 30 June 2016). The latter argues that there is strong reason to believe that the government's withdrawal decision would be unlawful, and hence that any notification of withdrawal would be invalid.

The point is further emphasized by Ian Johnston (Brexit loophole? MPs must still vote in order for Britain to leave the EU, say top lawyers, The Independent, 27 June 2016) noting the argument of a constitutional lawyer: A new bill to repeal the 1972 European Communities Act that took Britain into the EU must now be passed by parliament... It's the right of MPs alone to make or break laws, and the peers to block them. So there's no force whatsoever in the referendum result. It's entirely for MPs to decide.

It continues to be disputed whether triggering Article 50 requires the authority of parliament. Political and legal necessity may indeed require the endorsement of parliament (Brexit: Legal steps seek to ensure Commons vote on Article 50, BBC News, 4 July 2016; Nick Barber, et al., Pulling the Article 50 'Trigger': Parliament's Indispensable Role, UK Constitutional Law Association, 27 June 2016, fith over 350 comments; Brexit: Letter saying EU referendum result 'not legally binding' signed by 1000 lawyers, The Independent, 11 July 2016). At present, there is not a majority for Britain to leave the EU in either the House of Commons or the House of Lords. Indeed, given a free vote, it is believed that the unelected Lords would probably reject Brexit by a margin of six to one.

Given the seeming absence of criteria, it might be asked what the position would have been had the majority been: 1, 10, 100, 1000 or 10,000 -- as was a matter of concern in Austria. If the number for and against had been equal, what would then have been the conclusion?

Curiously the issue is otherwise highlighted (at the time of writing) by lack of any majority in a vote for membership of the UN Security Council. As a consequence a somewhat surreal resolution has been that two countries would "share the seat" (Netherlands, Italy to Share UN Security Council Seat, Voice of America, 28 June 2016).

In the case of Brexit, it might be asked how -- in a democratic country -- some 48% are expected to accept the right of 52% to leave the EU? And what if it had been 50.1%, or 49.9%? And how are the desires of a majority of voters in one part of the country to be reconciled with those in another part of the country? The question is further highlighted (at the time of writing) by reports of the possibility of a hung parliament in Australia following preliminary results of an election with Labor leading the Coalition on 50.06% to 49.94% on a two-party-preferred basis (Australia Election: tight vote could end in hung parliament, BBC News, 3 July 2016). What are the implications of a "hung referendum" -- a "hung Brexit", for example?

Most provocative is the question whether arguments of similar quality apply for the UK to "leave" other intergovernmental arrangements deemed by significant proportions of the electorate to be of questionable value. Brexit NATO? This would be consistent with the initiative of General de Gaulle in 1966.

Knowing that the current global system is increasingly inadequate to respond to many human crises, there is increasing conviction that environmental justice often overlaps with social justice. Equally provocative is then the case for new international institutions and laws to give a voice to ecosystems and non-human forms of life, as argued by Anthony Burke and Stefanie Fishel (Politics for the Planet: why nature and wildlife need their own seats at the UN, The Conversation, 30 June 2016). A suggestive precedent is indicated by United Animal Nations, founded in 1979.


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