Referenda are regulated by the Referendum Act (see generally the section on electoral law). The legislation sets out the procedure for a Constitutional referendum.
Once a bill proposing an amendment to the Constitution has been passed by the Oireachtas, the Minister is to order a polling day. It must be within 30-90 days thereafter. It may be the same day as an election or another referendum.
There are separate provisions for a referendum under Article 27. This relates to circumstances in which the President decides the matter is of such national importance that the will of the people must be sought. See separately in relation to this power.
The provisions in relation to holding a poll are broadly similar to those in other elections. The poll is carried out in districts and local places throughout the constituency. A specific order is made with new details providing for the referendum.
Referendum returning officers are appointed to conduct the referendum. Local returning officers who are also returning officers for the Dáil general election are appointed.
Persons entitled to vote are the same as those entitled to vote for the presidency. There are provisions to ensure the secrecy of the ballot.
Information and Ballot Paper
The legislation (originally) provided for a statement of information to voters approved by resolution of the Oireachtas. Copies were to be sent to every elector and made available through a number of other channels and places.
The form of the ballot paper allows for a “Yes” or “No” vote. In effect, the question asked is whether the proposal is approved.
There is provision for assistance by residing officers where the elector can’t read. Ballot papers are in a prescribed form.
Members of the Dáil and members of the Seanad may appoint agents at the issue of the ballots, opening of ballots and counting of votes. A Constitutional challenge to the fact that others were not allowed to appoint agents was rejected.
There is provision for voting by post. There is also provision for voting by special voters in the same manner as in other elections. Each broadly follows the same pattern as those in respect of Dáil elections.
Ballot papers which do not indicate a clear opinion on the proposal, or do not bear the official mark or identify the elector are not counted and are invalid. There is provision for challenge of rejected votes. There is provision for a recount.
On completion of the counting, the local returning officer furnishes the result to the referendum returning officer. The number of valid votes, the number of votes recorded and the total valid poll should be stated in his report.
The ballot papers are retained in sealed packets on completion of the vote. They are retained for a period of 6 months from the date of the provisional referendum certificate.
At the expiration of the period, the referendum returning officer, unless directed otherwise by the High Court, is to destroy the documents. The documents may only be inspected under the order of the High Court.
Counting and Certification
The referendum returning officer is to issue a unique certificate based on the returns of local returning officers. It is to set out the number of votes recorded, the number of votes for and the number of votes against. In the case of a special referendum, where a relevant majority of one third of all voters is required, this must be certified. The certificate is to become final unless challenged in the High Court within a certain time.
There is provision a for referendum petition equivalent to an election petition. It may be challenged on the grounds that the result is affected materially by:
- electoral offences;
- obstruction or hindrance of the conduct of the referendum;
- failure to complete the referendum in accordance with the act; or
- mistake or other irregularity in the conduct of the referendum and in the particulars stated in the provisional referendum certificate.
A petition to challenge the referendum must be presented within 3 days of leave being granted. A referendum may only be challenged if leave is first given on application made within 7 days.
Approved bodies may appoint a person as an agent at the referendum at the issue of ballot papers, opening of postal ballot votes and counting of votes. An approved body may appoint one person as an agent.
The Act confirms that a referendum petition may only affect the result if the High Court is satisfied that non-compliance and mistake materially affected the result.
The Referendum Act 1998 after the McKenna judgment provided for the establishment of a Referendum Commission for each referendum. An order is to be made by the minister for its establishment within a certain time before the referendum.
It is to be independent and consist of a chairperson who is a former or present High Court judge nominated by the Chief Justice. The ordinary members are to be the Ombudsman, Clerks of the Dáil and Seanad and the Controller and Auditor General.
The Commission prepares statements which give a general explanation of the matter. As originally enacted, provision was made for setting out arguments for and against the proposal and statements that are fair to all interests concerned. The 2001 Referendum Act provided that the Referendum Commission would prepare one or more statements containing a general explanation of the subject matter of the proposal and any other information.
The Commission is to distribute and publish statements through various media, including by way of leaflet, TV, radio and electronic media. The Commission may engage consultants and advisors as is necessary to perform its functions. It may undertake advertising. It may accept submissions.
The Commission shall publish notices seeking submissions and requesting persons to become authorised as approved bodies. Approved bodies must have a bone fide and legitimate interest in the matter concerned.