The High Court refused Michael Fisher leave to seek judicial review over his inability to vote by post in the 2018 referendum on the Eighth Amendment.
Fisher, described in the judgment as a journalist and broadcaster who lived in County Monaghan, was registered to vote there. He had booked a holiday in England with his wife, departing on the morning of the referendum, 25 May 2018. After asking Monaghan County Council’s local franchise officer about a postal vote, he was told the legislation made no provision for people in his circumstances.
On 13 April 2018, Fisher applied on notice to the respondents for leave to pursue several claims. He sought declarations that the refusal to include him on the postal-voter register breached constitutional and European Convention rights, and that the relevant provisions of section 63 of the Electoral Act 1997 were unconstitutional or incompatible with the State’s obligations.
The court considered whether Fisher had shown a prima facie, sufficiently arguable case to proceed. It noted that section 63(1) provided for postal voting where an elector’s occupation, service or employment was likely to prevent attendance at a polling station. The judge said Fisher did not fall within that provision because his absence arose from a prearranged holiday. The affidavit supporting his application did not address whether he could cancel the holiday or rearrange the flights.
Relying on the Supreme Court’s decision in Draper v the Attorney General, the judgment said the absence of a postal-voting provision for people away on holiday did not establish an arguable constitutional breach. It added that extending postal voting to people in Fisher’s situation would require legislative amendment.
The judge also rejected the proposed Convention grounds at the leave stage. The judgment said Article 3 of Protocol No. 1 applied to elections for the legislature, not referendums, and that Fisher had made no case that his freedom of expression was impeded. It treated the voting claim under Article 10 as misconceived in light of the authorities cited.
The court’s decision was limited to refusing leave to bring judicial review: it did not grant the declarations Fisher sought. The judgment noted that a declaration of incompatibility under section 5 of the 2003 Act would not affect the validity or continuing operation of the statutory provision. It also recorded that a Private Member’s Bill intended to provide postal votes in such circumstances had lapsed when the previous Dáil was dissolved in January 2016.