REFERENDUMS ARE HERE TO STAY: LAW PASSED!

While Russia and Belarus continue down the path of authoritarian hysteria, restricting their citizens’ right to protest, Ukraine has chosen a rational and fundamentally democratic instrument—legalizing national referendums. The Verkhovna Rada has passed the Law on All-Ukrainian Referendum in its second reading. One might think that the tradition of Maidan, as a hybrid form of direct democracy, remains too strong to ignore, but the current government is keen to move collective civic participation out of the realm of manipulative events and into a clear and well-defined legal framework.

A common question arises: Is a referendum a kind of political mega-technology? The answer is both yes and no. Undoubtedly, any plebiscite carries a specific political agenda, with the potential to reshape the political landscape. Even when Charles de Gaulle held a constitutional referendum in 1969 on decentralization, regional restructuring, and Senate reform—tying its success to his continued presidency—he suffered a dramatic political defeat when 52.4% voted “no.” Playing political games with the people can come at a steep price for leaders.

Why does the current government need the national referendum mechanism?

A conspiratorial answer might be: to legalize foreign ownership of land, grant “special status” to Donbas, repeal language laws, approve integration into the EU and NATO, redefine relations with Russia, and more. However, the reality appears different. President Zelensky and his administration require a legitimate tool for obtaining “public feedback” on critical state development issues that cannot be resolved unilaterally due to opposition groups leveraging these matters for their own interests. Additionally, the government lacks media control to shape public discourse. A referendum’s verdict, however, can be presented as the people’s will, justifying unpopular decisions for certain segments of society.

The law outlines four types of nationwide referendums:

• Constitutional (on amendments to Sections I, III, and XIII of the Constitution)
• Territorial (on changes to Ukraine’s territory)
• Nationwide issues of state significance
• Legislative (to repeal specific legal provisions)

The first type can only be initiated by the President, while the second is under the authority of the Verkhovna Rada. The third and fourth types are referendums by popular initiative, requiring signatures from at least 3 million citizens across at least two-thirds of Ukraine’s regions, with a minimum of 100,000 signatures per region. Notably, the law does not mention Crimea, mirroring its absence in the Constitution. These referendums are officially proclaimed (rather than initiated) by the President through a corresponding decree after the Central Election Commission verifies the collected signatures. Signatures must be gathered within 90 days of an initiative group’s registration, and these groups must be formed in meetings of at least 300 voters.

A referendum is legally limited to addressing only one question, and its results do not require further approval by state bodies (except in specific cases). The ballot must mandatorily include “yes” or “no” options, and if a law or bill is put to a vote, its full text must be provided. Referendums cannot be held simultaneously with elections.

A referendum is considered valid if at least 50% of registered voters participate. A decision is adopted if supported by a majority of those who voted. For constitutional and territorial referendums, a positive outcome means the law is approved. In legislative referendums, a repealed law cannot be reintroduced by the same parliamentary convocation for three years.

A key innovation is the introduction of electronic voting and vote-counting procedures. First, signature collection can occur electronically through an automated information and telecommunications system using electronic signatures, with daily updates published by the Central Election Commission (CEC). Second, electronic voting will be facilitated through a designated polling station and a specialized election commission, at least one-third of whose members must have higher education in information technology.

Political parties and civic organizations can officially participate as supporters or opponents of a referendum question if they register accordingly. Campaigning is allowed only if a financial fund is established. Parties also have the right to nominate candidates for election commissions, and televised debates among referendum participants are planned. However, campaigning is prohibited on the eve of and on the day of the vote.

Key Concerns in the Law:

• Constitutional Court Accountability: There is no legal responsibility for the Constitutional Court’s failure to issue a ruling within 30 days on the constitutional validity of referendum questions—an issue of particular concern given current institutional conflicts.
• Electronic Voting Challenges: The success of e-voting depends on a separate law governing the use of innovative technologies, which has yet to be passed.
• Constitutional Limitations: A new Constitution cannot be adopted via referendum—only amendments to Sections I, III, and XIII can be proposed, and even then, they require parliamentary approval.

Potential for Manipulation:

The CEC has the authority to reject the registration of an initiative group if its proposed question is identical in content or meaning to one already registered. This opens the door to political maneuvering: if an unfavorable question arises, the government could preemptively register a formal initiative group with a nearly identical wording, thereby blocking opposition initiatives. If the government-backed initiative fails to collect enough signatures (or has technical errors flagged by the CEC), it could be declared invalid, sending the message that the issue lacks public support. In my view, this is a brilliant political strategy.

Another controversial provision concerns the formation of polling station commissions. Priority is given to parliamentary parties, meaning each referendum commission must include one representative from the initiative group and two representatives from parliamentary factions. Other parties may gain representation through a lottery system, which is supposed to ensure balance between opponents and supporters of the referendum question. This mechanism could significantly influence voting outcomes, given the role electoral commissions have played in past elections.

Ultimately, while the law on national referendums provides an important democratic tool, it also introduces new avenues for political maneuvering and raises critical questions about its implementation and potential abuse.