Figures due to be released this week on the number of people who used their postal vote in the children’s rights referendum could have an impact on an application to overturn the referendum results, a constitutional expert has said.
Barrister Paul Anthony McDermott said if a large percentage of the 14,000 voters eligible to cast their ballot by post had voted, more weight could be lent to the argument that the referendum result could have been contaminated by the Government’s “unlawful” information campaign.
The referendum was passed on November 10th by a 58 to 42 per cent majority on a turnout of one-third of voters.
Joanna Jordan, from Dún Laoghaire, Co Dublin, and Nancy Kennelly, from Askeaton, Co Limerick, applied to the High Court last week for permission to take a petition challenging the result’s validity. Ms Kennelly voted Yes by post before the Supreme Court upheld Dublin engineer Mark McCrystal’s challenge to the Government’s information campaign. It found the campaign did not conform to the 1995 McKenna judgment. This required referendums to be explained to the public in an impartial manner.
The women claimed the unbalanced information campaign materially affected the outcome of the referendum. They also sought permission to bring a parallel challenge to the constitutionality of provisions of the Referendum Act, 1994, which require those seeking leave to bring a petition to first show a referendum was “affected materially” by an irregularity.
The case will be in court again tomorrow but Mr Justice Iarfhlaith O’Neill has already agreed the petitioners will need to have the full text of the McCrystal judgment, due to be delivered on December 11th, before their hearing.
Mr McDermott said it would “not be ideal if thousands were voting in ignorance” of the fact the Government’s campaign was unlawful. He also said the requirement to show “material affect” was designed to avoid minor or hopeless cases.
The stringency of the McCrystal judgment would also have a bearing on the chances of the women being given leave to take a petition.
“The more stringent the criticism, the easier the chance for the petitioners,” he said. The more unlawful the activity the closer the court would look at the validity of the result.
He said any decision would likely be appealed, which could delay implementation of legislation envisaged under the amendment until at least next July.
