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Dublin: 9 °C Thursday 23 May, 2013

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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Comments (54 Comments)

  • I can’t understand why people don’t vote.

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    • Lazy

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    • I wouldn’t be surprised if, given the near universal support from the government and other bodies, most people thought it’d go through effectively on the nod anyway so why bother?

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    • Democracy. They don’t have to, the choice is theirs.

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    • Because its a complex legal framework, & I’m not an expert in constitutional law. You might as well ask me to vote on Heisenberg’s uncertainty theory, I know roughly what it is but don’t really understand it.
      Also, both sides of the campaign offered no concise explanations as to
      1) why the current wording was deficient
      2) what specifically will this alteration to the constitution do to change the landscape.
      There was a lot of fudging e.g “this may (or may not) allow the state in some future date to….”

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  • Why are pencils used on voting slips and not ink?

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  • I worked for 10 yrs in child care and I’m so dismayed that the yes vote won.
    I fully understand that people voted yes wanting to make sure the welfare of children becomes paramount. However my concern is that currently the government is failing children in its care. Radically failing them. I’ve seen consistent non adherence to HIQA recommendations and some straight up dangerous decisions being made for children. I think we’ve jumped the gun on this one. Until the government can prove that they care about and can look after our children I don’t want to give them more power to do when ive seen it abused.
    I should add that the no campaign was in general a sham and did no favours for children and I fully welcome changes that facilitate easier adoptions etc but ultimately what I’ve seen in the last 10 yrs working in child care is so heartbreaking I couldn’t with conscience vote yes.

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  • What’s the problem with pencils? Highly unlikely that someone is going to run off with a number of ballot papers and change the votes! There is nothing stopping anyone from using their own ink!!!! Bring your own !

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    • Exactly Judith, next time there’s a vote on anything I’m going to add it in like a signature to any comment I make:
      “bring your own pen if you’re paranoid!”

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    • Christ almighty, are people really that stupid? It seems so. To suggest that the counting clerks take out every single vote, rub out the X on the No and tick the X on the Y is completely idiotic. The boxes are sealed in the polling station, they are escorted by Gardai to the counting hall, the returning officer in the presense of the Gardia stores the boxes, seals the door and leaves them until the morning for counting in front of the public. If the seal is broken on the door or the boxes, an investigation is carried out. The Gardai also stay outside the hall overnight. The boxes are often shown to tallymen (Yes/No campaigners and people of various political parties) to show that they are properly sealed. If they were all to conspire to fixing the election or referendum, it would be one big secret considering the amount of polling clerks, gardai, the returning officer and those for/against the particular vote.

      For years, online keyboard warriors keep saying “We voted X and so did everyone else, but we got Y”. Perhaps they did go that way, but that’s not a representative sample of the whole Irish electorate. Hence why we have exit polls from all forms of national media which is usually accurate and they have polls in the leadup to the vote. Everyone I knew who voted, voted Yes (bar one who said all the child needs to do is complain about their parents and the child is immediately removed) but I didn’t say “Sure, twill be a Yes vote then” as a result. How do I know what Dublin or Cork are voting? Or someone else in my town? I don’t. They could all be voting No, or not Voting at all.

      Also remember that the Government have absolutely nothing to do on an individual case by case basis in terms of looking after the children. It clearly shows the amount of uneducated who are stupid enough to think the Government parties make all the choices for where kids go.

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  • peter 12/11/12 #

    I listened to John waters on frontline & was unimpressed with his argument. Children’s charities are the experienced voice for me & this influenced my yes vote (albeit @ 21.50). If people want to try overturn the result I hope it’s for a genuine reason & not just to get their face all over the media or a protest against the government, this has taken years to come around please don’t play politics with it.

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    • Why exactly do you go by children’s charities? They don’t have any particular legal knowledge that makes them worth listening to. Their opinion was based on the same false information everyone else got. The law was already sufficient to protect children. It just wasn’t implemented by the HSE. This referendum has changed nothing at all in regard to protecting children.

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    • Sean, anyone working with children has to be qualified or informed about child protection laws.

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    • peter 12/11/12 #

      I don’t ‘go’ by anybody I was influenced by children’s charities is what i said. I could of easily been influenced by waters & co but I found their argument was full of bullshit & scaremongering in my opinion.

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    • Well Susan, you’d think they’d have known that this ammendment has changed nothing in that regard and the problem was with the implementation of existing law.

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    • @sean. This amendment was never going to change anything only the constitution. It lays down a framework whereby existing or new legislation is modified or guided. This will take years to enact at the speed these people go! i voted yes because this was about children and not political ego – I wish these people would come up with solutions rather than rubbish arguments. Ps. I understood that the retracted data published by the government was not false but bias to the yes vote.

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    • This is why I voted no.. Amazing how many people who have worked in the system voted No. http://www.indymedia.ie/article/102657

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    • I’m not sure that children’s charities are the voices who should be given so much weight on this at all.

      We were a foster family in our teens – I was witness to no interaction between our family (including foster siblings) and children’s charities.

      Generally, children’s charities see an aspect of where help is needed – that does not to extend to experience within the home.

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  • As to why pencils are used.
    1. The pencils can be re used for subsequent elections without the “ink” drying out.
    2. The ballot papers are stored for a number if years after the poll. If the storage area is flooded the ink would run from the pages where as the pencil won’t.

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    • Votes are stored too, in boxes that get damp, moisture can damage and smear an ink mark, but a pencil mark will remain grand n the damp, bookies used them up recently for same reason, & autographs, they worth more in pencil, amazing item now that I think of it..

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  • If the court ruled the state had violated the rules and did not remain impartial then it should never have went ahead. Any other country and political heads would roll. Good ole Ireland do as your told

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  • No big surprise there, with around a third of people actually voting, it’s hardly a representative democratic answer. Therefore makes a challenge likely IMHO. Previous governments have re-ran referenda for less! Get out and vote people!

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    • i voted Saturday so why should my effort be voided simply because the other 70% didn’t show up, everyone had an opportunity to voice their opinion.

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    • If people didn’t vote and the result wasn’t as they wanted, tough. It’s a democracy, the decision isn’t made by the people, it’s made by the people who show up.

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    • Let them challenge the result. But let them pay for it themselves.

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    • I voted. But I agree how the hell can 58% of a pathetic 33.5% turn out manage to change the constitution of our country.

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    • Reg 12/11/12 #

      Ironically Peter, because of the constitution!

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    • There is no minimum requirment for turnout in our Constitution, probably because the framers of it assumed that people would do their civic duty when it comes to voting. Low turnout can not be used as grounds for overturning the decision. We’ve had referenda with lower turnouts that this.

      Perhaps we need to have a referendum to include a minimum threshold clause into the Constitution! It definitely should be considered by the Constitutional Convention. That being said I wouldn’t like to set such a threshold too high because it discriminates against those who do turn out on the day.

      The Government information campaign is a more likely ground for a challenge but I find it hard to believe that the Supreme Court would accept that over 75,000 people or so would have changed their minds because of it.
      We will have to wait and see the full judgement but I would have thought that if the Supreme Court had been of the opinion that the Government’s campaign could materially affect the outcome they would have stopped the referendum from taking place. It would be a very big decision for the Supreme Court to overturn a democratic decision made by the voters.

      However if there is one lesson for the Government to be learned then it is that they should stay out of promoting referenda. Let the Referendum Commission explain it and let individual political parties and organisations campaign for and against it. That way such issue won’t arise again.

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    • @reg @Jim. I agree with ye. It just sickens me that it’s allowed on such a small turnout. IMO (I know I’m kidding myself) but a 90% turnout with a 75% majority would satisfy me, especially on the subject of changing our constitution.

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  • I think at least part of the reason for the low turn out was the wild statements put out by the no camp and nobody definitively refuting the statements that were just plain wrong. People might not have believed the loony no side but they don’t trust the government either so they just didn’t vote

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  • The result of both this referendum and the Fiscal Treaty referendum could and should be challenged in the courts. In each case, the government has wrongfully used taxpayer’s money to promote their agenda in the guise of an ’information’ campaign for the public.
    It is the role of the Referendum commission to inform the people impartially and there is no place for a parallel information campaign from the government who are certainly not impartial.

    This is a deliberate cynical abuse of our democracy by FG and Labour in defiance of a clear principles laid down by the Supreme court in 1995 and it needs to be stopped. Even if the challenge is ultimately unsuccessful in terms of overturning the referendum result and forcing another vote, it would still be a valuable exercise in protecting our Republic’s democratic principles and so would be money very well spent.
    Additionally it would send a very clear warning to the government not to attempt such cynical anti democratic tactics in the future.

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  • It is theoretically possible that someone could take a case that the referendum should be quashed due to government bias but I’d see it as a fairly hard challenge to succeed with as it’d be a fairly big burden of proof to show that the government information booklet had a big influence on voting. With so many potential sources of info (newspapers, TV, radio, the internet etc) it’d be fairly hard to succeed with this, especially with the Hanafin ruling as the article here notes.

    It’s been a few years since I studied Constitutional Law though so I could be mistaken.

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    • Basic principle of the Hanafin v Minister for the Environment was that Hanafin failed to prove that the government’s bias materially affected the results of the referendum. Sure it was an interference but the bar for proving that voters were affected is high as otherwise it’s effectively saying that voters are either stupid, easily misled or don’t bother looking at differing viewpoints on the issues.
      Given the advent of the internet since 1996 when Hanafin was decided, I’d say the bar is even higher nowadays.

      Feel free to disagree with me but based on my understanding of constitutional law, a legal challenge is likely to fail.

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  • Good article outlining why we should have voted No. http://www.indymedia.ie/article/102657

    I think this amendment needs to be challenged. The vote should not have gone ahead after that Supreme Court ruling.

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  • Kathy “Spine Shiver” Sinnott wants to challenge the decision of the Irish people on this referendum. However, this attempt to overturn the decision taken by the people in this referendum will fail. The bar that is set for a court to overturn the expressed will of the people, i.e. those who vote, is very high indeed. It is not a bar that a bunch of far Right loons are going to be able to surmount. In this case, however, it will be essential that they are stiffed with the costs of this quixotic exercise. It’s not the taxpayers’ job to indulge their conspiracies.

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    • Just to be clear, are all the No voters “far Right loons”, with a capital “R”, or just those who took to the airwaves to explain why?

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    • @Desmond there has been no attempt to overturn the descision as yet,unless you know something no else does.Lastly unless that picture is false aren’t you a bit on the mature side for name calling.My 12 year old knows its wrong to do it.

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    • Alex,
      They are loons because their arguments were paranoid falsehoods.

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    • @Alex, as you said “just to be clear” … the only person threatening a legal challenge so far is Sinnott … and far Right loon is a pretty acurate description of her. My point is that she can make any challenge she wishes, but the taxpayer should not be asked to pay for her indulgence.

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    • So does that make all the political parties advocating a yes vote far left loons?!
      Mind = blown!

      Desmond, you do remember that the govt (pushing a yes vote) spent €1.1m in taxpayers money in an exercise which mislead them!?

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    • @Tomy .. answer to first question “No”. Answer to second question, “Yes”. In any event, the government’s website/leaflet error does not come anywhere near constituting sufficient grounds to overturn the exercise by the people of their sovereign right “in final appeal, to decide all questions of national policy, according to the requirements of the common good.” (Art. 6). Anyone who chooses to launch a challenge to this exercise of our Article 6 rights should be made stand the cost of that challenge. The taxpayer is not a piggybank for any Right-wing loon to launch no-hope legal challenges.

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    • If it is a no-hope challenge then it’s just stupidity. However, if there is grounds, I have no problem with the challenge.

      In any event, forgive me if I don’t take your word for it with respect to regarding it as no-hope.

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  • The Supreme Court is not going to overturn a Referendum not matter what.

    The will of the people is supreme. The people have spoken.

    Let’s move on.

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    • ….these people of will, I’ve heard of them, AKA keyboard commando(e)s(nts) or the armchair patriots, they will a lot, same with the spoken crew, the talk a lot, doncha think?

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  • A lot of people in the younger age brackets didn’t vote because they couldn’t vote. They emigrated to find work and are disenfranchised by doing so. They may still be on the register for a year after they go, but this being a backward state that doesn’t recognise voting by e-mail or other electronic means, they would have to physically return home to vote.

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    • Look now, be realistic – more than 60% of the electorate is not in Australia or anywhere else. Stop making excuses for people.

      Some people are exercising their right to NOT vote but let’s be honest, a lot of people simply didn’t bother.

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  • Would it be fair to limit the voting just to the 30odd percentage who voted on Saturday or full elective population. Or just ask those postal voters to revote.

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