The Supreme Court has dismissed Joanna Jordan’s appeal over the 2012 Children Referendum, leaving its provisional result final. The court held that a referendum result may be set aside only where it is reasonably possible that an irregularity affected the outcome, and found that Jordan’s evidence fell well short of that test.
The case concerned the referendum on the Thirty-first Amendment of the Constitution (Children) Bill, held on 10 November 2012. Jordan brought a petition challenging the provisional referendum certificate and parallel plenary proceedings arguing that the law’s requirement to show a material effect on the result was unconstitutional if it imposed an impossible burden.
The government’s information campaign had already been found unconstitutional in earlier proceedings known as McCrystal. The Supreme Court judgment said further evidence in Jordan’s case showed a clear breach of the McKenna principles. The government spent €1.1 million on the campaign, which included polling, advertising and the design and delivery of a booklet. The judgment noted that the campaign’s materials favoured the Yes side in some respects.
At the High Court hearing, individual voters and political scientists gave evidence about the campaign’s possible influence. The petitioner’s expert relied on survey data to argue that people recalling receipt of the government booklet were more likely to report voting Yes. The respondents’ expert disputed whether the data could establish what caused the referendum result. The High Court accepted the criticisms of the petitioner’s evidence and dismissed the petition on its merits after granting leave to bring it. It later dismissed the constitutional claim.
On appeal, the Supreme Court set the test for “material effect” as whether it was reasonably possible that the irregularity affected the result. It said a court should consider the nature of the interference, the referendum margin, relevant polling and campaign evidence, and any voluntary evidence from voters. A petitioner need not prove that the result probably would have been different.
Applying that test, the court said the Yes margin was substantial. It estimated that the case required evidence of a reasonable possibility that 85,000 Yes voters would have voted No, 170,000 non-voters would have voted No, or a combination. The judgment said fewer than a handful of individuals came forward to say the government campaign affected their vote or decision to abstain, and concluded the evidence did not meet the threshold.
The court dismissed both the petition appeal and the appeal in the plenary proceedings. It did not order a new referendum. The provisional result became final and the amendment became part of the Constitution. The judgment was delivered by Justice O’Donnell on 24 April 2015.