Has the US ever held a referendum? Would it be possible according to the constitution?

Has the US ever held a referendum? Would it be possible according to the constitution?


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Many western countries (Switzerland more than anyone) now and then arrange referendum about issues like membership in the EU, or keeping or abolishing military conscription, or whether or not to shift from driving (cars) on the left hand side to the right one instead.

Has there ever been a referendum (the people's direct majority vote without any middleman elected) in the US? Since I think not, is there any one good explanation? On federal or state level.


In the US, referendums are handled on a statewide basis. There's no constitutional basis for having a national one. So if you wanted to effect a national referendum, you'd need to get the same referendum put up in all 50 states for the same election.

That may sound a bit daunting, but candidates for president (at least in the primaries), have to go through roughly the same process. There's no automatic way to get put on every state ballot, so supporters must get a primary candidate on the ballot individually in all 50 states through each one of those state's process for that.

Of course there's nothing the individual states can decide this way that is binding on the Federal Government. So all you'd end up with by doing this is an overly thorough publicly-financed opinion poll. Still, this is often done in individual states as a way to encourage certain voters to come out to vote in a particular election.

The exception here is a Constitutional Amendment. It is possible for one of those to get ratified by actions of the states, which could theoretically (if each state wanted to do it that way) come via a popular vote of that state. However, the deciding factor would be getting ratification of 3/4ths (right now 38) of the States. That could in theory happen even if a majority of the voters across the country voted it down.


Constitutional reform: Fact Sheet - Historical Lessons for a Successful Referendum

The Australian Constitution can only be changed by referendum. There have been 44 referendums held since 1901 and only eight of these have been successful. The most successful referendum in Australia’s history was in 1967 where 90.77% of the nation voted ‘Yes for Aborigines’. [1] The 1967 referendum amended the Australian Constitution to give the federal parliament the power to make laws in relation to Aboriginal and Torres Strait Islander people and to allow for Aboriginal and Torres Strait Islander people to be included in the
census. [2]

This is in stark contrast to the 1999 referendum which proposed to alter the Australian Constitution so that Australia became a republic [3] and insert a new preamble. [4] The result was a no vote for both amendments. [5] On the question of a republic, 54.87% voted against the proposal and on the question of the preamble 60.7% voted no.

The lessons learnt from these and other referendums provide significant guidance for developing a successful referendum strategy, they include:

  • support for the referendum by major political parties (bipartisan support)
  • ownership of the referendum issue by many Australians (popular ownership)
  • education campaigns so that voters understand the referendum issue and process (popular education). [6]

Bipartisan Support

Bipartisan political support is essential for the successful passage of any referendum. Currently there is bipartisan support for the recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution.

The years of advocacy and national debate that preceded the 1967 referendum created a climate of political consensus, [7] reflected in the fact that a ‘No case’ was not put to the Australian people. [8] The Vote Yes Campaign in the 1967 referendum captured the hearts and minds of
Australian people because the political parties were united on the need for change and as a result the message clear. In direct contrast, the 1999 referendum was characterised by political disunity. Differences between political parties emerged over the proposed wording of the 1999 preamble which undermined its chance of success.

Popular Ownership

There is often greater support and strength for a referendum proposal that is championed by the people. This can be achieved through comprehensive debate and opportunities for public involvement. It is important that the referendum is not perceived as owned either by politicians or the elite, but by the nation as a whole. [9]

The success of the 1967 referendum reflects the high level of participation of all Australians in the process leading up to the referendum. The widespread consensus generated by years of campaigning and extensive national debate contributed to a sense of public ownership. [10] In contrast, the 1999 referendum was a politicised process that resulted in confused and complicated messages, isolating the Australian people from the debates. The debate failed to capture the public’s imagination. [11]

Popular Education

Past referendums have demonstrated that greater understanding among the Australian public of the issues being proposed increases the chances of a yes vote. [12]
The 2009 National Human Rights Consultation highlighted a general lack of knowledge and understanding by the Australian public of the nation’s political and legal system, constitution and referendum
processes. [13] A robust education campaign to increase public awareness about the need for constitutional reform will be extremely important in this referendum
strategy.

Despite the technical nature of the amendments, significant advocacy efforts and the clarity of message in the 1967 referendum mobilised the Australian population to vote yes. In the 1999 referendum the ‘Yes/No’ booklet became the main source of information during the formal campaign. The information provided in the booklet was drafted by the politicians who either supported or opposed the
amendments. As a consequence, the booklet presented information to the public as polarised and adversarial, rather than dispassionately and factual.This did not assist in increasing the public’s understanding of the issues in a clear and coherent manner. In addition, the ‘Yes/No’ booklet often does not suffice to provide the balanced and credible information that is required for a successful referendum. [14]

For more information on constitutional reform see Constitutional reform: Creating a nation for all of us or download PDF

[1] The Australian Electoral Commission, Referendum Dates and Results 1906 – Present, http://www.aec.gov.au/Elections/referendums/Referendum_Dates_and_Results.htm (viewed 1 November 2010).

[2] Constitution Alteration (Aboriginals) Bill 1967 (Cth).

[3] Constitution Alteration (Establishment of Republic) Bill 1999 (Cth).

[4] Constitution Alteration (Preamble) Bill 1999 (Cth).

[6] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), ch 7. Three of the five factors they identify are discussed here.

[7] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), p 232.

[8] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), p 232.

[9] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), p 246.

[10] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), p 232.

[11]
M McKenna, First Words: A Brief History of Public Debate on a New Preamble to the Australian Constitution 1991-99, Parliamentary Library Research Paper 16 (2000). At http://www.aph.gov.au/library/pubs/rp/1999-2000/2000rp16.htm#Feb (viewed 13 September 2010).

[12] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), pp 252-254.

[13]
National Human Rights Consultation Committee, National Human Rights Consultation Report,Attorney-General’s Department(2009), p 17. At http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads (viewed 13 September 2010).

[14] G Williams and D Hume, People Power: The History and Future of the Referendum in Australia (2010), pp 261-263.


Political Parties Threw a Monkey Wrench in the Electoral College

WATCH: America 101: What is the Electoral College?

The framers of the Constitution hoped that political parties wouldn’t be necessary given the limited powers of the federal government, but presidential candidates started coalescing into political factions as early as the 1796 election, the first after George Washington. Almost immediately, the existence of warring political parties created headaches for the Electoral College system.

In the first four U.S. presidential elections, each Elector cast two ballots for president. The candidate who won the majority of Electoral College votes was the president and the second-place finisher was the vice president. In the 1796 election, John Adams won the presidency, but the second-place finisher was Thomas Jefferson, Adams’ arch political rival and now his vice president.

“That was one of the first clues that the Electoral College created by the founders wasn’t working as intended,” says Robert Alexander, a professor of political science at Ohio Northern University and author of Representation and the Electoral College.


States with initiative or referendum

Twenty-six states have initiative and/or veto referendum processes at the statewide level. Washington, D.C., also has initiative and referendum processes. The availability of the powers at the local level varies by jurisdiction depending on state and local laws.

On May 14, 2021, the Mississippi Supreme Court issued a 6-3 decision stating that it is impossible for any petition to meet the state's distribution requirement and has been impossible since congressional reapportionment in 2001.

The six justices wrote, ". Whether with intent, by oversight, or for some other reason, the drafters of [the constitutional signature distribution requirement] wrote a ballot initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress. To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court." Ώ]

Click here for more information on the lawsuit and the ruling.


The following states have initiative and/or veto referendum processes at the statewide level:


The constitutional impact of referendums

The constitutional position of referendums cannot simply be assessed by examining the consistency with which they are used, or the formal legal status of the decisions reached. These factors are important, but there is also a deeper sense in which referendums might be seen to challenge the underlying norms and values of the constitution. The practice of making (some) decisions by referendum can potentially have a broader impact on the dynamics of the constitution. This constitutional impact extends beyond even the most significant technicalities governing the circumstances of their use, and generates questions about the nature and location of power in the political system. In particular, the use of referendums in the UK constitution requires us to reconsider the character of authority, the location of sovereignty, and the form of democracy within our political system. This raises questions at decreasing levels of abstraction, if we understand authority as concerning the nature of power, sovereignty as concerning the location of the final say, and democracy as concerning the decision-making process.

Authority

In the manner they are incorporated into the UK’s constitutional framework, referendums can have a potentially explosive effect on the character of authority within the state. In contrast to the regular authority of the legislative, executive and judicial organs established according to a standard constitutional distribution of powers, referendums have an irregular authority. When a decision is made by the electorate at a referendum, that decision is taken outside the established constituted powers. This happens sporadically rather than with any particular consistency, which compounds the irregular nature of what is occurring: the traditional constitutional organs are (at least in terms of the actual substantive decision to be taken) no longer the place where the authority to resolve a matter resides, albeit only for a particular matter at a particular (but difficult to anticipate) moment in time. The irregular authority of referendums means they are therefore potentially disruptive of both the political establishment and political expectations. This disruptive effect is not, of course, inevitable in practice. But it exists in principle, and – as in the 2016 Brexit referendum – becomes evident when the decision taken is to reject that status quo or the preferences of the political actors who must implement the decision.

The tension here between regular and irregular authority has a number of dimensions. First, when a referendum produces a result which usurps the expectations of established political actors, it still falls to them to implement the decision in exercise of their regular constitutional authority. Even if a referendum decision has pre-defined legal effects (not normally the case in the UK), the government and legislature will still need to take action in response to whatever changes in law or practice are instigated. Footnote 91 For complex, multifaceted, open-ended questions like how to leave the EU, this leaves the regular political actors simultaneously constrained and in possession of huge discretion, which may be difficult to reconcile. Second, there is no standard timetable or ‘electoral cycle’ to respond to such a democratic expression of will. The consequences of a referendum decision may be easily and swiftly dealt with, or it may have effects which linger and define the priorities of the established constitutional actors for an unknowable period of time. In that sense, the exercise of the regular authority of the core political actors may be dominated by the irregular authority of the referendum decision for a length of time which is beyond their control. It may be left to the established constitutional authorities to define the process for delivering the referendum outcome, but that process may require revision and extension in ways which are difficult to foresee at the outset. The creation of section 13 of the European Union (Withdrawal) Act 2018 to codify and legalise the role of the UK Parliament in the approval of any Withdrawal Agreement, by establishing the need for a ‘meaningful vote’, is a clear example of the way in which the legislature and executive had to reshape the process of responding to the 2016 referendum, with important but also ultimately inconclusive effects. Footnote 92

The impact of the irregular authority of a referendum on the regular authority of the established constitutional actors is not inherently negative. No political system could ever function in a seamless fashion without unpredicted events or flawed delivery of planned goals: some irregularity must be expected. But that this irregularity emerges at the heart of the state’s authority makes it particularly significant, given the regularity of the established constitutional institutions is an essential part of what generates their power. It is for this reason that referendums have the potential to disrupt the political establishment and their expectations to such major effect, something the UK is only just beginning to come to terms with following the 2016 decision to disconnect from the EU. Yet there are also positive aspects to this impact on constitutional authority – in principle a referendum provides a route for different inputs into what may be an overly closed political system, and alternative routes to accountability if political decisions are subject to direct popular confirmation. However, these schisms in authority can also be deployed as justification for subversion of the established political institutions: the unconstitutional attempt to prorogue Parliament to limit its ability to prevent a ‘no deal’ Brexit by 31 October 2019, provides a clear example of an attempt by the government to exploit the referendum’s irregular authority to its own advantage in a dispute between the established institutions.

Sovereignty

A further constitutional impact of referendums is on our understanding of sovereignty. Sovereignty concerns the location of ultimate power within a constitutional framework. The UK constitution is organised explicitly around the fundamental idea of the sovereignty of Parliament, yet referendums seem to contradict this, establishing the sovereignty of the people. Footnote 93 The combination of the atypical character of the UK’s constitution and the increasing resort to decision-making at referendums therefore appears to generate a clash between two different conceptions of sovereignty: parliamentary sovereignty and popular sovereignty. This apparent inconsistency has been an influential source of hostility towards the use of referendums in the UK. Yet while Dicey, the leading defender of an orthodox understanding of parliamentary sovereignty, came to endorse the idea of referendums when it was politically expedient for him to do so, Footnote 94 modern accounts which juxtapose parliamentary and popular sovereignty continue to exist, and have the potential to obscure rather than reveal. Footnote 95

There is no doubt that referendums raise challenging questions about the location of ultimate power, and where the final say on any decision resides in our political system. These questions run deeper than debates about the formal legal status of a referendum outcome, and whether the result of such a process is binding or advisory. In principle, a legally unlimited sovereign Parliament can always overrule a decision reached at a referendum, or reverse any automatic legal consequences which have been prescribed to flow from its outcome. Yet this is to presume that the most important question in relation to sovereignty is how we resolve a competition between two entities for the formal final say. Instead, there is a need for more sophistication relating to different understandings of sovereignty, distinguishing between this as a legislative concept, as compared to a (relational) political principle. Footnote 96

From this perspective, we can see that rather than an incompatibility between parliamentary and popular sovereignty, instead there is significant compatibility these two concepts, because they are primarily orientated to different contexts. Parliamentary sovereignty is an intra-constitutional principle: it determines the locus of law-making power within the UK constitution, and establishes an institutional hierarchy in which Parliament has primacy over all other official actors. Popular sovereignty, in contrast, is an extra-constitutional principle: it reflects the normative political value of democratic government. But the abstract normative idea that government must be democratically elected to have legitimacy will always need to be institutionalised in specific constitutional arrangements within a political system. Parliamentary sovereignty is one way to institutionalise the ideal of popular sovereignty, because it recognises that the UK’s legislature has the strongest democratic credentials, in relative terms, when compared to the executive and the judiciary. But, equally, it is not the only way of doing so, nor indeed is it the most common way, given the overwhelming prevalence of codified constitutions in states around the world. A constitutional system in which the legislature is limited by legal constraints enforced by the judiciary has no greater claim to be founded on popular sovereignty. Footnote 97 Instead, these differences of constitutional form and institutional hierarchy simply show there are multiple models which give functional expression to the abstract notion of democratic government.

However, the conceptual compatibility of parliamentary and popular sovereignty, understood as principles operating on different planes, one intra-constitutionally and one extra-constitutionally, does not mean there is no space for tension. Technicalities can be masked in intense political debates, and the ideas of parliamentary and popular sovereignty may be pushed beyond their respective constitutional planes. Parliamentary sovereignty may become a normative ideal reflecting a preference for representative government, rather than simply an intra-constitutional doctrine concerning the location and nature of legislative authority. Popular sovereignty may be pulled into operation as a norm to challenge decisions made in the established constitutional institutions, despite its abstraction and lack of specificity about how a political system ought to be organised. We have seen expansive conceptions of both principles in constitutional debates about the implementation of the Brexit referendum, whether that is parliamentary sovereignty being stretched to signify the general (rather than legislative) supremacy of the legislature, Footnote 98 or popular sovereignty being exploited to attack the hung Parliament of 2017-19 for blocking the will of the people. Footnote 99 It is also possible for the popular sovereignty of groups within the state to be contrasted against the sovereignty of the central Parliament. Footnote 100 But the popular sovereignty of a national or sub-national group within the state would still eventually need to be institutionalised in specific constitutional arrangements, whether parliamentary or otherwise. As a result, this is better understood as a claim for the sovereignty of the people within one state to be divided in two, which is not something that a legal doctrine of legislative sovereignty can (or should) be understood to prevent.

Whether instrumentalist or otherwise, contrasting parliamentary and popular sovereignty in such ways hinders a clear understanding of the categorical distinction between these ideas. There is little use in complaining, however, about conceptual imprecision in heated political debates, and whether relating to the Brexit process or a Scottish independence referendum, these existential questions have a special capacity to give particular prominence to matters of sovereignty. Yet parliamentary and popular sovereignty do not represent irreconcilable power claims, and to see them as such can generate uncertainty about how political institutions should respond to referendum decisions, potentially exacerbating both stasis and division. In contrast, when we recognise the complementary character of these different principles, we can see the variability which is possible in constitutional design. There is a complex relationship between the people and their elected representatives, with no need to choose definitively between them. Instead, a more sophisticated understanding of the alternative realms in which different sovereignty claims operate allows us to think about the situations in which more or less direct popular decision-making will be justified. In this sense, we can avoid a preoccupation with false dichotomies of sovereignty, and focus on determining which kinds of decisions ought to be taken following the collective input of the electorate.

Democracy

Finally, referendums also have a significant impact on the form of democracy which defines our constitutional systems. They constitute a departure from the representative model of democracy which remains dominant across democratic political systems, in providing a means for the people to take a decision directly, rather than indirectly through their chosen representatives. The existence of different democratic processes for decision-making raises crucial questions about the identity of the optimal decision-maker – who should decide what, and when? As we have seen, it is constitutionally permissible for the legislature to pass decisions on to be taken directly by a majority of the electorate, for this is simply one among a number of ways of institutionalising the idea of popular sovereignty. But in what circumstances should this be done? This is not a standard or technical decision about what decision-maker is best equipped to make a choice. Instead, it goes to the core of our understanding of democracy, and the meaning of government by and for the people. For some, the people should choose their representatives and trust their skill and judgement in taking key political decisions. Footnote 101 For others, this is to circumvent the actual opinions of the people, and more direct, specific instructions are required on an ongoing basis to ensure the actions of the governing elites reflect the views of the wider population. Footnote 102

This normative clash between representative and direct democracy is in practice irresolvable. There is no absolute way of deciding which conception of democracy is superior, or in what circumstances, or for what categories of decision, these differing democratic processes should be used. The scale and complexity of the modern state is such that the overwhelming majority of decisions are taken on a representative basis, whether by the Parliament which is (at least in the Commons) directly elected, or by the government which derives its democratic mandate indirectly from the composition of the legislature. In the face of this reality, and in the absence of any definitive criteria establishing the ideal parameters of representative and direct democracy, the challenge is to move beyond simplistic claims of the superiority of either model. Instead, the constitutional dilemma is how to exploit the potential offered by the effective combination of these different democratic processes. We should avoid the reductivism of presenting this as a clash between two competing ideals, and rather focus on ways of structuring their interaction which generate complementarity. This is especially the case given the complexity of the relationship between representative and direct democratic processes: in the UK the representative institutions in general have the power to determine when a matter should be put to a direct democratic decision and how to implement it, yet at the same time the authority of a specific choice made by the electorate will be immense.

Against this backdrop, the key question is how the constitution should determine when decisions should be made directly by the people, usually in the form of the referendum. As we have seen, in the UK referendums have largely been reserved for decisions which would prompt significant constitutional change. But how do we decide when decisions are of the requisite degree of constitutional sensitivity? And should referendums only be for questions of ‘major constitutional significance’ to begin with? If this is simply about different processes for decision-making, a test of constitutional significance may not be appropriate to trigger potential recourse to direct democracy. There is nothing inherent in these different democratic processes which suggests that direct democracy should be preserved only for an exclusive category of ‘higher order’ decisions, however they might be defined. Indeed, rather than focusing exclusively on major, complex, constitutional questions in referendums (at least at the national level), logic might suggest that simple, more mundane decisions might also be suitable for direct democratic resolution. This is not simply to expand the possible scale of direct democracy in the UK’s political system, but also to reconsider the type of decisions which might be appropriate for the electorate to determine directly.

If this path is followed it might challenge us to rethink the idea of democracy as it operates in our political system. There could, of course, be many objections to such a change in approach. Regular referendums might be difficult to deliver or institutionalise. They might be claimed to lead to electoral disinterest or voter fatigue. If offering a decision to the electorate inevitably requires it to be simplified to a point where complexity is subsequently unavoidable at the implementation stage, direct democracy may seem to be a mirage. If the representative institutions have the initiative as to when a referendum should be held, it may become an elite tool for policy confirmation. And if those decisions can then be appropriated by representative institutions to claim a reinforced mandate, such as Prime Minister Boris Johnson’s ‘people’s government’, Footnote 103 the extent to which direct democracy really represents some break with the dominant paradigm of representation may be open to doubt. Footnote 104

The alternative view, however, is that broadening our conception of different forms of democratic power allows flexibility in the design of decision-making processes. Direct democracy in general, and referendums in particular, can be organised in different ways for different purposes – as is clear from the diversity of national experiences, they may be confirmatory, consultative, agenda setting, and more. Footnote 105 And this can provide different avenues in the constitution for different groups or constituencies to shape policy making, or indeed to take authoritative decisions, on constitutional matters and beyond. As a result, the use of referendums in the UK constitution does not generate an irresolvable clash between direct and representative democracy, but it does prompt us to reconsider the suitability of different democratic processes for various categories of decision. There are no easy answers (whether before or after the Brexit referendum) but to recognise the variability within the idea of democracy is surely better than either indulging in complacency about our representative democratic model, or assuming direct democracy should only be a last resort when faced with exceptional questions.


Section 7: Legislative Process

All Bills for raising Revenue shall originate in the House of Representatives but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.


What Happens If The Election Was A Fraud? The Constitution Doesn’t Say.

For all the headlines about Russian interference in the 2016 presidential election, no hard evidence has come to light, at least publicly, showing that President Trump or his team were involved. But suppose that such evidence did come to light &mdash what would happen if it became clear that Trump or his advisers colluded with the Russians? 1 This isn&rsquot the only type of wrongdoing the investigations could uncover, but it&rsquos among the most serious because it would cast doubt on the legitimacy of the 2016 result. So, is there a process for dealing with a finding that in essence invalidates an election?

When it comes to presidential elections, the answer is: not really. The laws and processes around national elections have grown up in a piecemeal fashion over time, with state and local laws governing the administration of presidential elections. And the Constitution itself focuses more on ensuring stability than on administering elections. As a result, there aren&rsquot clear procedures for how to handle questions of legitimacy after the fact &mdash especially when those questions involve the presidency.

Breaking this down requires taking a step back to think about the origins of the Constitution and the problems it was designed to solve. First off, the American presidency is kind of a strange office. It combines the duties of a head of state with duties of a head of government. (Many countries divide those duties &mdash for example, by having both a president and a prime minister.) The Constitution gives the president the power to lead the executive branch &mdash the responsibility to &ldquotake care&rdquo that the laws are faithfully executed &mdash and places that person in charge of the military (although Congress retains the power to declare war).

After some rocky years under the Articles of Confederation, many (though not all) political leaders were ready to make tradeoffs, allowing a more powerful central government that could ensure stability. That was one of the reasons for having a national executive under the new system &mdash the Articles of Confederation didn&rsquot have a president, which made it harder to enforce laws, deal with rebellions and forge national policy out of the demands of different states. There were a lot of considerations when figuring out how to select the right person for that new role, however. The substantial power of the office meant that the president needed to be a person of competence and character to be independent from Congress and to be able to represent the nation and not just a few states or population centers. Selecting such a person through a direct election was out of the question it was difficult for many of the founders even to imagine a national election, or that attempting one would achieve the intended goals. Furthermore, disputed elections are, by definition, destabilizing, so the Constitution is designed to maximize the chances of a conclusive outcome, particularly for the nation&rsquos most powerful office, the presidency.

The framers gave the Electoral College broad discretion to resolve disputes as it saw fit: The text of the Constitution pretty much says an election is legitimate when the Electoral College says it is. It doesn&rsquot lay out a process for do-overs. Occasionally, courts have ordered new elections for offices other than the presidency after a proven case of fraud or error. (Or gerrymandering &mdash a court in North Carolina ordered new state legislative elections, though this order has been put on hold.) And a Senate election was once redone in New Hampshire because it was too close to determine even with multiple recounts.

But whether this kind of re-do is allowed for presidential elections is a more complicated matter. Some legal scholars maintain that the language in Article II of the Constitution prevents holding a presidential election again, thus putting it beyond the power of the courts to order a re-vote, as they have occasionally done for other offices. Others suggest that there is legal precedent for a presidential re-vote if there were flaws in the process. One instance in which this question arose was the &ldquobutterfly ballot&rdquo from the 2000 election, which may have caused some voters to choose Pat Buchanan when they meant to vote for Al Gore in Palm Beach County, Florida. 2

If the 2000 election had taken some different twists and turns, the re-vote question might have come up in a serious way, and it&rsquos not clear what the courts would have decided. At least one federal court has suggested that the courts could order a new election. In 1976, a District Court in New York heard a case alleging voter fraud in several urban locations. The court&rsquos opinion maintained that federal courts had a role to play in ensuring free and fair presidential elections, arguing: &ldquoIt is difficult to imagine a more damaging blow to public confidence in the electoral process than the election of a President whose margin of victory was provided by fraudulent registration or voting, ballot-stuffing or other illegal means.&rdquo This assertion challenged the idea that presidential elections occupy a special category beyond such court remedies. However, in this case, the court didn&rsquot find sufficient evidence that voter fraud had altered the outcome, or even occurred at all. As a result, its claims about presidential elections were not evaluated by higher courts and have never really been tested.

So experts disagree about whether courts can order presidential elections to be held again. That&rsquos not great news for angry people hoping for a do-over. And even if it is constitutionally permissible, there&rsquos much broader agreement that the standard for invalidating an election result and holding another vote is quite high. University of Memphis law professor Steven Mulroy told me that courts will usually entertain this option only if they determine a violation of rules that would change the election outcome. In the case of the 2016 election, this would likely require proving tampering in several states where the vote was close &mdash enough to change the result in the Electoral College. In that case, a few states would vote again, not the entire country, Mulroy said. But this is new territory, and no one knows for sure.

It&rsquos worth noting that the U.S. has been through a number of challenging presidential elections. The 1800 election ended in an Electoral College tie, and some politicians mulled over the possibility of holding a new election. Critics alleged that the 1824 election was decided through a &ldquocorrupt bargain&rdquo among elites, allowing John Quincy Adams to become president even though he won neither the popular vote nor the electoral vote. The election of 1876 had irregularities (including alleged vote suppression) in several Southern states, and an imbalanced commission ended up handing the Electoral College vote to Rutherford B. Hayes even though he had lost the popular vote. People are still debating John F. Kennedy&rsquos razor-thin margin in 1960, the honesty of the votes in Texas and Illinois that year, and even Richard Nixon&rsquos decision not to challenge the results. And, of course, the 2000 election presented lots of problems &mdash confusing ballots, hanging chads, questions about recounts. Each of these instances was different from the questions hanging over 2016, but they offer some context for how our system handles questions of electoral legitimacy.

Sometimes these questions seriously undermine a presidency, as it did with John Quincy Adams and to a lesser extent Hayes, who had already promised to serve only one term. 3 Other times the noise fades from the public conversation and governing proceeds, fulfilling the constitutional goal of stability rather than months (or more) of electoral disputes.

In most of the historical cases, the main question was how the Electoral College votes would be allocated in each state. Once those have been cast, the case for questioning a presidential election or gauging which side really won becomes a lot more difficult. Of course, the Constitution does have one mechanism for undoing the results of an election: impeachment. That process, however, is focused on individual wrongdoing (or, through a separate process, inability), not electoral irregularities. In that sense, even if collusion revelations did lead to Trump&rsquos impeachment and removal from office, the process wouldn&rsquot really address the question of whether his election had been legitimate in the first place.

The lack of an established process for reviewing elections points to a larger issue: The structures established by the Constitution assumed a world in which the presidency and the Electoral College were not fully absorbed into a contentious national party system. That vision has long since been replaced by one in which presidential elections are national contests over policy agendas and ideas. The text of our Constitution has never been changed to reflect this reality. Instead, the Electoral College remains the final word on who gets to be president. When it comes to the possibility that the winning side colluded with a foreign power to influence the election outcome, the Constitution doesn&rsquot offer much in the way of a plan.


The Governess Who Spilled the Queen’s Secrets

She was one of the Royal Family’s most trusted confidantes. She helped bring up a future Queen. Her loyalty and loving care were rewarded with royal favor and even a rent-free home for life.

But in 1950, Marion 𠇌rawfie” Crawford, beloved Scottish governess of Princesses Elizabeth and Margaret and servant of the Royal Family, was expelled from court, kicked out of her house and shunned by the very people she𠆝 loved for decades.

Her crime? Spilling the beans about her former charges. Crawford was the first servant in the royal household ever to cash in on royal secrets𠅊nd she paid the price for her candor.

A trained teacher, Crawford was just 22 years old when she entered the Royal Household. She was hired by the Duchess of York—the future Queen Mother𠅊s a governess for her two daughters, Elizabeth and Margaret. Their uncle, Edward, was expected to become king and they were raised accordingly (their father Albert, Duke of York, was second in line to the throne). Crawford’s charges were privately educated, and had little contact with the outside world. Daily life was routinized and quiet.

Princess Elizabeth (center) and her younger sister Princess Margaret of Great Britain play in a miniature automobile while their governess, Marion Crawford, keeps an eye on them.

Bettmann Archive/Getty Images

Then, everything changed. Edward, now king, fell in love with Wallis Simpson, an American who had been married twice. At the time, it was unheard of for a king to marry a commoner, much less a divorced American. But Edward refused to relent and in 1936, against his family’s wishes, he abdicated in order to marry Simpson. Albert (now George VI) became king, with his oldest daughter, 10-year-old Elizabeth (known fondly as Lilibet), next in line for the throne.

Crawford moved with the family to Buckingham Palace and helped train her charges for their royal roles. But she also worked to make life as normal as possible for the girls. She took them on expeditions outside the palace, formed a Girl Guide troop for royals, and took them shopping at stores like Woolworths.

The royal household was almost obsessively secretive. For members of the Royal Household and their servants, confidentiality was not just expected—it was a kind of unwritten law. As the London Review of Books noted in a review of Crawford’s book, The Little Princesses, “Respect and respectability are what counts.” The public knew little of what happened in the palaces where Lilibet and Margaret grew up, and their mother, now queen, wanted to keep it that way.

This attitude extended into the household, too. Crawford recalled how the family dealt with the enormous strain of World War II by pretending everything was fine no matter what. It was her job to divert the girls, now teenagers, from the many crises and dangers of war and to help them remain calm and prepared for anything. “The royal discretion still held,” she later wrote. “Unpleasant or bothersome matters were never discussed.”

Princess Elizabeth and her sister Princess Margaret accompanied by Miss Marion Crawford leaving the headquarters of the YWCA (Young Women’s Christian Association) in London, May 1939. (Credit: Stephenson/Topical Press Agency/Getty Images)

As the years dragged on, Crawford became one of the queen’s close confidantes𠅋ut grew trapped in her role as governess. Even after Lilibet was an adult and Margaret was well into her teens, Crawford was expected to stay in the palace and put off her own personal life in favor of her charges. Though she had a long-term boyfriend, she was forbidden to marry until Lilibet did. She only left the household after Lilibet—then 21�me engaged.

In return for her 17 years of loyalty, Crawford was showered with royal gifts. She was made an officer of the Royal Victorian Order, a kind of knighthood given to people who have served the royals with distinction. She was given a generous pension and allowed to live rent-free in a cottage on the grounds of Kensington Palace.

Crawford settled into home life and maintained good relationships with her former charges and the Royal Family. But in 1949, the Ladies’ Home Journal, an American magazine, approached her and asked if she𠆝 write an article about her service with the royals. Ever dutiful, Crawford asked the queen if she𠆝 agree to its publication.

The queen said yes and even got the palace to broker the deal. The idea was that feel-good stories about the family might bolster Anglo-American relations. There was just one condition: Anonymity. The queen insisted that Crawford not attach her name to the publication, and instead connected her with a journalist who could write the stories based on her information.

‘I do feel, most definitely, that you should not write and sign articles about the children, as people in positions of confidence with us must be utterly oyster,’ the queen wrote to Crawford. “I know you understand this, because you have been so wonderfully discreet all the years you were with us.”

It’s unclear what happened next, but when the article was published it noted that Crawford was a source and included details about the former king and Wallis Simpson that the queen found distasteful. Crawford’s tales of her time in the palace were eagerly read by a public hungry for information about royal life and the future Queen Elizabeth.

Though the future Queen Mother had authorized the publication of the article, she was furious. She told other royals that the trusted nanny had “gone off her head.” The next year, Crawford published a book, The Little Princesses, about her life in the palace𠅊nd the queen got her revenge by kicking her out of her house and cutting her out of royal life for good.

According to one reviewer, The Little Princesses is 𠇊 book of such sugary confection…that it seems incredible anyone could be offended.” But for the royal family, it felt like a betrayal. No member of the royal family ever spoke to her again, and her name apparently still is not uttered in palace circles.

The queen’s participation in the article was only revealed once Crawford died in 1998. She stipulated in her will that a box of mementos and letters from the Queen Mother agreeing to the publication of the article be returned to the Royal Family. Only then did the world learn that Crawford, who attempted suicide multiple times after her banishment and was vilified for her loose lips for decades, had protected her bosses until the end.


Where the 1967 referendum failed

What was the effect of the 1967 referendum? Did the federal governments act to the expectations of Aboriginal and non-Aboriginal people who so passionately had fought for the Constitution to be changed?

Sadly this hasn't been the case. The government at the time didn't expect a 'Yes' vote and, two months after the referendum, still had no idea how to use the new powers it had been given. [26] While then-prime minister Harold Holt is said to have had a genuine interest on improving Aboriginal affairs, "all hopes that the referendum would result in positive change drowned with him" [26] when he never returned from a swim in the ocean.

The next government with PM John Gorton was disinterested and not motivated to take action, and it seems this attitude still lingers today. Governments of all political colours continue to 'forget' to consult with Aboriginal people during law-making business.

While the 1967 referendum helped delete discriminatory references specific to Aboriginal people, it put nothing in their place. Torres Strait Islanders, who have a culture very different to mainland Aboriginal people, have never been referred to in the constitution. This constitutional silence is what drives many initiatives calling for constitutional recognition.

That referendum also did not address clauses in the constitution that permit racial discrimination generally. Aboriginal people are often on the receiving end of discrimination and like to see these clauses removed.

Australia is now the only democratic nation in the world that has a constitution with clauses that still authorise discrimination on the basis of race.

For example, in 1998 the High Court had to decide on a case which addressed the changed sections of the Constitution. Despite the changes, the government was allowed to pass a law that was detrimental to, and discriminatory against, Aboriginal people. [27] In the Hindmarsh Island High Court decision Justice Kirby made it very clear that Section 51 (xxvi) can be used to the detriment and not always for the benefit of any race.

As Aboriginal people realised that the promises of the constitutional change were not going to be met, they started to organise and to protest: The Tent Embassy was established and the modern land rights movement was born. But these are other stories.

Although the 1967 referendum has failed politically, historically is was, and remains, a triumph of the human spirit that continues to inspire generations of Aboriginal and non-Aboriginal people alike. It is one of the glowing coals that keep the fires burning.

The ABC maintains a mini-site with a lot of in-depth information about the referendum.


Britain Appoints Franklin as Postmaster of 13 Colonies

Franklin, a meticulous record-keeper, was so skillful at running postal operations in Philadelphia that in 1753, the British Crown appointed him as joint postmaster for all 13 colonies. Though he nominally shared authority with William Hunter, a Virginia-based printer, Hunter pretty much let Franklin call the shots, according to Leonard’s book. Franklin held that post for more than two decades, during which he orchestrated huge improvements in mail service, including establishing a regular schedule that allowed mail to move efficiently along post roads up and down the Eastern Seaboard.

Franklin “traveled widely to inspect postal routes, find the most reliable postal clerks to serve as his associates in the different towns and cities, and create a system of communication that would work well for riders of the post,” Mulford explains.