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Dublin: 18 °C Tuesday 29 July, 2014

Referendum result ‘could be challenged’

No campaigners have suggested the referendum result may be challenged – what legal grounds could this be done on?

Image: Laura Hutton/Photocall Ireland

YESTERDAY’S CHILDREN’S REFERENDUM result could be challenged – and any challenge may hinge on the Supreme Court judgement on the Government’s informational website and booklet, and whether voters changed their minds after last week’s court ruling.

The referendum passed by 58 per cent to 42 per cent, with a low turnout of 33.5 per cent.

RTÉ News reported yesterday that a tally of Wicklow postal votes – which were cast before the Children’s Referendum Supreme Court ruling – showed a “much larger Yes vote” compared to votes cast in the same area on Saturday.

No campaigner Kathy Sinnott said yesterday that the result was “contaminated“, and that it should be challenged in the courts. John Waters, also of the No campaign, said yesterday that a challenge could take place.

Children’s Minister Frances Fitzgerald and Fine Gael would say no more of any potential challenge yesterday than that the reports were purely speculative.

In 1996, Des Hanafin took a challenge against the result of the Divorce referendum. On that occasion, the referendum was passed by a much tighter margin than yesterday’s result.  He did not succeed.

Legal aspects

Barrister Paul Anthony McDermott told TheJournal.ie that if a challenge to the result of that referendum could potentially come from a number of aspects.

If the vote had been carried by 70 or 80 per cent, it would make it difficult to suggest the unlawful publications had affected the outcome of the referendum.

But if the challengers felt that the initial opinion polls got it “so wrong to suggest people were very undecided and right up to walking into the booth hadn’t made up their mind”, the challengers could attempt to say the unlawful publication did have a disproportionate affect.

There was a day and a half’s gap between the material being removed from the website and people voting. McDermott noted that the booklets also included in the Supreme Court challenge hadn’t been removed from homes, nor an order given for people to destroy them. McDermott pointed out that in the Hanafin case, it was proved that the unlawful publicity ceased a week before and so people had time to make up their own minds.

The job of someone challenging the result [could be] to try to convince the court that the margin could have been materially affected by unlawful publications.

Supreme Court

In its ruling last week, the Supreme Court said that the government had “acted wrongfully” in spending money on a website which was “not fair, equal or impartial”. But its full judgement is due soon.

“The more critical it is about the booklet, the more chance you have about saying the booklet materially affected the outcome,” said McDermott.

He noted that in the Hanafin case, the Supreme Court said there is a presumption that people know why they want to vote a certain way regardless of publications and advertisement. This presumption could help show that any unlawful material did not impact on the referendum voting.

Opinion poll evidence could also be used. If there was a means of determining a difference in voting using opinion polls before and after the judgement, that could be used in court.

But above all, it is no small decision to take a challenge against a referendum result. “It is a big thing for a court to overturn a referendum result,” pointed out McDermott.

Spending

There was €3 million spent on the campaign, with €2 million spent by the Referendum Commission and the remainder spent by the Department of Children and Youth Affairs.

A special advisor to the minister said that the government will need to wait to see what the Supreme Court decision is, and reflect on it before deciding if something would be done about this money.

Read: Gilmore: Children’s Referendum “never really took fire”>

Read:“Historic” – overwhemingly positive reaction to Children’s Referendum result>

Read: As it happened: The Children’s Referendum count>

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