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Monday, October 19, 2015

the Ukraine-EU Association Agreement up for vote in the Netherlands. ....I think

UPDATE: the Council of State has announced it plans to give its verdict regarding the legal challenge of the referendum on Monday 26 October 4 pm CET. So from that moment we will have certainty on whether the referendum will be held. 

In a previous post, I have indicated that a "corrective consultative referendum" may be on its way to the poles in the Netherlands regarding the Association Agreement the EU (but also all its Member States, as well as Euratom) signed with Ukraine.

The number of app-based requests received, according to
Geenstijl (x= corrected data), via @datagraver
After parliamentary approval of the agreement in the Netherlands, within 6 weeks, over valid 300,000 requests had to be sent to the Election Council (Kiesraad) to trigger the referendum. Last week, on 14 October, the Election Council announced that threshold was reached exceeded: 472,849 requests were received. Based on a detailed test (name, address and signature match with registered data; person eligible to send the request) of a random sample of just over 4112 requests, ca 90.6% was deemed valid, and thus  427,939 were validated, which means a referendum is to take place.


The referendum has a consultative character only, but in the case of "NO" vote and a turnout of at least 30%, going against the outcome can not be done quietly: a draft act proposing either entry into force of the rejected act or retraction of that act, has to receive full parliamentary approval before it can enter into force. In the case of a clear decision (>60% NO) it thus seems -to me- unlikely that the law will enter into force, because approving such a law against the majority would equate to political suicide. ... Which means we are stuk with "provisional application" of the EU part of the agreement for an indefinite period, and possibly eventually a new agreement will have to be brokered. 


Council of State, in The Hague
There is a caveat though, because -as any administrative decision of a government authority- it is open to appeal. In election (and referendum) matters only a single instance appeal is open, directly to the Council of State (Raad van State), and the procedure is designed to be fast: appeals have to be lodged within 6 days (which means Tuesday 20 October at the latest), and the Council of State is to decide the appeal in 6 days of the receipt.

I wouldn't be discussing this, if the Council of State hadn't announced today, an appeal had been filed. An oral hearing date was immediately set for Thursday 22nd, and based on the decision term, that means a final decision will be given on Monday 29th the latest.

Are print outs of online requests valid?

I am not sure what the grounds for the decision are, but according to website, one of the campaigners for the referendum, the point of contention is the mode in which the requests were received. They had to be sent to the Kiesraad on a designated form, or a "copy" thereof. The Kiesraad itself provided blank forms, as well as the possibility to create a pre-filled form, which only had to be printed and (manually) signed. The geenpeil campaign however, developed a web-based application, that allowed for submission of all required data, as well as the signature (to be produced using the trackpad of a laptop, drawing using a mouse, or using a touchscreen). Requests could not be printed by the applicant, but were stored on Geenpeil's servers, and printed and delivered by Geenpeil. (noone is contending this is a efficient system: the Election Council received the requests and DIGITIZED them before they further processed them)

According to Geenstijl, this system is in full conformity with the law, and they indicate they checked this with the Election Council. I am not an expert in the interpretation of the law on this point, but think the independent Election Council would have not allowed those forms, if they didn't think they would be within the law. Although we don't know which part of the requests were received using a printed computer-aided signature, according to Geenpeil, only a minority of requests were received through "regular" forms, so an invalidation of those forms will mean that no referendum will be held. But he last word is now with the Council of State.

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