The issue revolves around whether the referendum, estimated to cost between $1.6 million and $2.2 million, is considered to be binding or advisory, and whether it complies with state and local law.
A non-binding referendum could be open to legal challenge because voters would not have the final say about the borrowing, some experts said. Both the County Legislature and a state fiscal monitoring board also would have to sign off on any borrowing.
Before Wednesday, county officials had repeatedly said the referendum was non-binding. But yesterday afternoon, a county attorney said the vote would be binding.
"The purpose of a referendum is to make law; it's not to be an opinion poll," said Columbia University law professor Richard Briffault, who specializes in election and local government law. "There's simply no authority for the government to conduct an opinion poll and use the voting booth for that opinion poll . . . Right now, the county simply has no authority to hold an advisory referendum."
Nassau County Executive Edward Mangano, a Republican, has called the referendum "non-binding" in several interviews.
But Wednesday, when asked about the legality of the referendum, Lisa LoCurto, the first chief deputy county attorney, said in a statement, "This is a binding referendum. It is not an advisory referendum.
LoCurto said in an interview that officials who had called the referendum non-binding were not using the phrase in a legal sense. She said the referendum is binding because it would authorize the county to establish a new program and a special tax to pay for projects in the Nassau County hub area.
Even if the referendum is binding, experts said questions over its legality remain, since only very specific changes to law can be addressed through a referendum.
"Like any proposed binding referendum, this needs to be analyzed to see if it's a proper subject and if it's been done properly," said Jerry Goldfeder, a Manhattan election lawyer. "One needs to review the law and the language of the ballot question to see if it passes muster."
Nassau's Democratic Elections Commissioner, William Biamonte, said he would ask the state attorney general for an opinion on whether the referendum is legal.
"This entire process has been haphazardly rushed with no consideration of the cost and legality of a non-binding special election," Biamonte said. "I am asking the attorney general for an opinion on the permissibility of this, before we run off a cliff and spend over $2 million to accomplish nothing but possibly breaking the law."
A spokeswoman for the state attorney general's office did not return phone calls.
According to a state Board of Elections opinion in 1977, non-binding referendums are not permissible.
"Moreover, in the absence of express State statutory authority to do so, an advisory referendum seeking the opinion of the electorate on a particular issue is not permissible," the opinion stated.
"The constitution and state law allow a referendum in a very particular set of circumstances," Goldfeder said. "Beyond that, our laws are enacted through a legislative process. That's different than in many other states."
But Legis. Dave Denenberg (D-Merrick) said the referendum is more than advisory because it would create a new tax line for hub projects.
"That tax line doesn't start to cost the taxpayers any money until the bonding is authorized by the Legislature . . . but the tax line is created regardless," Denenberg said.
Goldfeder noted that the state courts have ruled numerous times against advisory referendums, including one involving the Shoreham nuclear power plant.
"This is no different than the Shoreham advisory referendum," said Desmond Ryan, who heads the Association for a Better Long Island, of the Coliseum effort. "It was my understanding then, and it's my understanding now. It's illegal."
But LoCurto said the referendum's "certain affirmative and binding actions," along with its establishment of a new tax line and revenue fund, make it legal.