The High Court has refused Joanna Jordan leave to present a petition seeking to have the provisional result of the 2018 referendum on the Thirty-sixth Amendment declared null and void.
In a judgment delivered on 20 July 2018, Mr Justice Kelly, President of the High Court, said the application did not meet the threshold under section 42 of the Referendum Act 1994. Jordan had to provide prima facie evidence of a matter listed in section 43 and show that it could have materially affected the referendum result as a whole.
Jordan raised two complaints: the role of the Minister for Health in the Yes campaign and alleged problems with the electoral register and voting process.
On the minister’s campaign role, Jordan argued that his ministerial duties and advocacy for a Yes vote had become conflated. She cited his appearances at campaign events, media interviews and a press conference, as well as comments on health issues including cervical cancer screening and contraception. She also argued that his ministerial salary meant public money was spent indirectly on the campaign.
The judge said ministers were entitled to campaign for a referendum outcome while continuing to carry out their official duties. He found no prima facie evidence of an irregularity in the minister’s conduct, and said there was no evidence, even at that threshold, that it materially affected the result.
Jordan’s second complaint included claims of duplicate polling cards, alleged de-registration, problems with postal votes and ballot boxes, and discrepancies in vote tallies. She also relied on reports concerning the accuracy of the electoral register. The judge described much of the material as assertion, speculation or inadmissible hearsay. He said the affidavits did not establish prima facie admissible evidence of wrongdoing under section 43.
The court also found no prima facie evidence that the alleged problems materially affected the referendum result as a whole. Kelly said it was therefore unnecessary to decide the respondents’ separate argument about responsibility for maintaining the electoral register.
The application concerned the provisional referendum certificate signed on 28 May 2018 and published in Iris Oifigiúil the following day. The court refused leave to present a petition; it did not determine a referendum petition on its merits.