A few days ago, some have made the argument that the proposed August 1 referendum authorizing the redevelopment of the Hub area to construct a new arena for the Islanders was somehow invalid. These arguments were echoed in an article in Newsday. As I demonstrate below, the idea that the vote is invalid is nothing more than a transparent attempt by opponents of the arena plan to derail the process or at the very least raise questions regarding the legitimacy of the vote. There is nothing unusual or illegal about the planned referendum.
As far as I can tell, the problem stems from some ill-advised statements by Ed Mangano that the proposed referendum is "non-binding." It is true that New York law says that an advisory referendum is not legal. However, whether or not a referendum is binding depends on what the law authorizing it says - not how some elected official characterizes it in a press interview. Accordingly, to determine the validity of the law passed by the Nassau County legislature on May 31 authorizing the August 1 referendum one has to read the actual text of the law (a copy can be found here).
Before we get to that, a few words on why a referendum is actually needed for the Arena plan to go forward. Section 154 of the Nassau County Charter provides that the legislature cannot pass any law that increases the amount of money the County can borrow. Section 155 says that any increases have to approved by the voters. All that the law passed by the legislature on May 31 was designed to do is ask the voters to authorize the County to borrow the $400 million necessary for the arena plan in accordance with Section 155 of the Charter. And if you read the (very short) law, you will see that is precisely what the law does. The first paragraph provides as follows:
"Nassau County is hereby authorized to establish a program to provide for the financing of public projects to further the development of the Nassau County Hub Area and for such purpose, to issue, appropriate and expend funds, not to exceed four hundred million dollars ($400,000,000), derived from bonds of the County issued pursuant to duly enacted bond ordinances."
The law continues with various provisions regarding the creation of a fund for the purposes of the project, how the funds can be used, and so forth, and concludes by providing that the law is to take effect upon an affirmative vote by the public to be held on August 1, 2011.
By way of comparison, this law is nearly identical to the environmental bonding law ratified by a county referendum in 2006 (local law no. 10-2006, available here). Note that this law was passed by a unanimous county legislature. No one suggested at the time that the referendum was somehow invalid.
So what did Mangano mean by his characterization of the referendum as non-binding? I haven’t seen the quotes themselves, but if I had to guess, he probably was referring to the fact that under Nassau County law the actual bonding is subject to a further supermajority vote of the legislature. Thus, because the legislature can in theory reject the actual bonding despite the approval by the voters, the referendum is, in a certain sense, non-binding. However, this doesn’t make the referendum "advisory". For example, in 1977, the Board of Elections rejected a referendum that asked: "Shall the Town Board of the Town of Stillwater abolish the Town Police Department?" Such a vote has no legal significance at all. In contrast, the voter approval of the borrowing for the Arena plan is a necessary step in moving the bonding forward. Like many aspects of governmental process in a check-and-balances system, there are other hurdles that need to be cleared further down the road. This doesn't mean that the vote is like a public opinion poll. In fact, if the law authorizing the Augst 1 referendum is invalid, then every bond referenda -- including the 2006 environmental bonding law – is invalid as well.
As some tweeted at the time the Newsday story came out, this argument is being trotted out by Mangano opponents in the legislature or the NIFA folks opposed to the plan. And even though the argument is not a serious one, if it has the effect of raising doubts about the validity of the vote in the eyes of the voters and county legislators, the opponents of the plan likely accomplished exactly what they set out to do.