Is it possible / legal in Ireland to have a multiple-choice referendum?

hatrickpatrick · 24-03-2015 1:33am #1

I was thinking about how one might go about having a truly democratic referendum on the abortion issue a few minutes ago, and thinking about how the whole abortion question is very far from a binary issue (approve / disapprove). Opinion on the issue, as with so many others, spans an entire spectrum.

I don't want to focus on abortion itself as an issue in this thread, but I'll use it as an example here. Could one have a referendum in Ireland which offered multiple options, for instance instead of the following (very simplified language, too late at night to bother with formality

):

(Bullet points are tick boxes)

"Agree to insert into the constitution "that abortion be made available to any pregnant women in Ireland"
Yes

No

We could have a question like this

"Agree to insert into the constitution the following: (Tick all which you approve of)
That abortion be made available to pregnant women in Ireland
Where pregnancy occurs as a result of rape

Where pregnancy occurs as a result of incest

Where a fatal foetal abnormality is present

For any reason whatsoever

And further add the following sub-clause
Where a pregnancy is within X weeks of conception

Alternatively, tick this to indicate disapproval of all of the above options and to maintain the constitution without any amendment

Again, abortion is only a random issue which jumped into my head when I was thinking about this, we could have similar multiple choice questions about almost anything. It could easily be applied to the divorce referenda of the past:

…insert into the constitution "That a married man or woman may request a divorce
In cases of infidelity

In cases of abuse

In any case whatsoever

Etc etc etc.

There are probably many reasons people would suggest that such a system would be a bad idea, but before we discuss that, would it be legal? Is there anything anywhere in the law or the constitution which dictates that a referendum / constitutional amendment must offer a simple, boolean choice on one specific sentence, without the possibility of sub-division or conditional voting?

feargale · 24-03-2015 2:50am

It has never been done, but I don't see why not, and I know of no provision excluding it. However, in the interest of clarity would the choices not have to be mutually exclusive? Then you would be in single transferable vote territory. It's an interesting suggestion, but don't count on any Irish government, past, present or future being so imaginative. They would much prefer to be able to choose the day or days of a referendum depending on whether they wanted students, liberals or conservatives included in or excluded from the voting.

MouseTail · 24-03-2015 8:08am

The No vote would always win as the Yes vote would be split.

Phoebas · 24-03-2015 8:14am

Where pregnancy occurs as a result of rape
Where pregnancy occurs as a result of incest
Where a fatal foetal abnormality is present
For any reason whatsoever

Rather than a multiple choice referendum, wouldn't having 4 simple Yes/No referenda on the same day cover this problem - and you don't have the problem of votes being split?

johnnyskeleton · 24-03-2015 11:03am

I think politics is more art than science, and so the system we have at present, while not great, is not bad either.

On the specific example of abortion, the correct way to deal with that is for the Oireachtas to assess what they think will pass.

So supposing the Oireachtas felt that the people of Ireland would vote in 2015 in favour of abortion in cases of risk to the mothers health and/or fatal foetal abnormalities, that wording can be tabled and the people will either pass it or not. In 2020 if they think the people have become more liberal they can have a wider wording.

Which is why the Oireachtas correctly assessed that the body politic has no clear consensus on the law so they savvily get us to vote on the presidential age referendum instead.

blackwhite · 24-03-2015 11:17am

I'd imagine that Article 47-1 would be the main stumbling block:

http://www.irishstatutebook.ie/en/constitution/index.html#part16

ARTICLE 47

1 Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law.

The requirement for "a majority of the votes cast as such Referendum" would imply that you need more than 50% of the votes to be in favour of one of the options listed.

Whilst you could argue that simply being the most popular option satisfies the above, it's far too open to interpretation, and would lead to an immediate legal challenge.

It's much safer, from a legal point of view, to just give two options and be virtually certain that one or the other will get a majority.

hatrickpatrick · 24-03-2015 5:13pm

Phoebas wrote: »

Rather than a multiple choice referendum, wouldn't having 4 simple Yes/No referenda on the same day cover this problem - and you don't have the problem of votes being split?

It probably would, indeed. I was just wondering hypothetically if it actually could be done legally, or if there was a requirement for referenda to be boolean (yes/no) questions and nothing else.

Having thought further about it, multiple referenda on the same ballot paper probably makes more sense. You could still avoid the vote being split by allowing people to select more than one option however - were you assuming in my proposal only one option would be selected?

conorh91 · 24-03-2015 6:24pm

blackwhite wrote: »

The requirement for "a majority of the votes cast as such Referendum" would imply that you need more than 50% of the votes to be in favour of one of the options listed.

Majority means the greater number of any number of divisions. 20% can be a majority.

There is no legal impediment to a multiple-choice referendum to amend the constitution.

The courts have strongly indicated a reluctance to get involved with impeding the proposal of amendments, or possibly even a complete refusal to do so, provided the basic procedures are followed.

oscarBravo · 24-03-2015 7:08pm

conorh91 wrote: »

Majority means the greater number of any number of divisions. 20% can be a majority.

Isn't that a plurality?

seamus · 24-03-2015 7:10pm

I guess the primary issue here is that the validity of a result in a multiple-choice referendum could be challenged on the basis of the ballot paper being confusing.

Since the wording itself is usually a bit of legalese and quite carefully constructed, this often means that it can be inaccessible to most people. Hence why refcom produce huge booklets about it and what it means.

This makes the question at the end easy: "Do you approve the proposed change to the constitution". Yes or No

Now try to frame it in multiple choices while still making it easy to understand. So you have Choice A, Choice B or No Change.

Refcom then has to produce a booklet detailing what it means if choice A wins, what it means if choice B wins and what it means if there's no change. The ballot paper also has to be clear and unambiguous - do you say, "I approve change A", "I approve change B", and "I do not approve any change"? If so, how do you ensure that people are really clear on which one is A, and which one is B? You could put the actual text of the changes on the ballot paper, but many people still won't be sure which change they're actually voting for.

And now try and imagine that with 3/4/5 options.

The abortion clause is in fact the perfect example of why you don't puts laws in a constitution. And so as a rule of thumb where you have a scenario that you'd like to put multiple options to the electorate, then there's a good chance that you should be constructing the change in law and not in the constitution.

conorh91 · 24-03-2015 7:19pm

oscarBravo wrote: »

Isn't that a plurality?

a relative majority is a plurality

oscarBravo · 24-03-2015 7:43pm

conorh91 wrote: »

a relative majority is a plurality

Right, but the Constitution doesn't use the word "relative"; it uses "majority" in isolation, which is generally understood to mean "more than half".

conorh91 · 24-03-2015 7:54pm

oscarBravo wrote: »

Right, but the Constitution doesn't use the word "relative"; it uses "majority" in isolation, which is generally understood to mean "more than half".

With respect, this is exactly a kind of "officious bystander" pedantry that the courts do not entertain in constitutional matters

If the courts were to read Article 47.1 like they would read a contractual covenant, Article 47.1 would necessitate the inclusion of spoiled votes, thus meaning that the People would have technically rejected the 15th amendment to the Constitution (Dissolution of Marriage), when "all votes cast" were accounted for.

When there are only two proposals, there will be a simple majority. There can not be a relative majority.

When there are more than two proposals, clearly there can be a simple or a relative majority. Either way, a majority. Dictionaries include relative majorities in their definitions of "majority". Seems obvious.

blackwhite · 24-03-2015 8:16pm

conorh91 wrote: »

Majority means the greater number of any number of divisions. 20% can be a majority.

There is no legal impediment to a multiple-choice referendum to amend the constitution.

The courts have strongly indicated a reluctance to get involved with impeding the proposal of amendments, or possibly even a complete refusal to do so, provided the basic procedures are followed.

Is there any precedent for what is deemed to constitute "a majority of the votes cast", or is this just your interpretation on it?

IMO, without a precedent, any Government proposing a multiple choice referendum would be leaving themselves wide open to a challenge

conorh91 · 24-03-2015 8:51pm

blackwhite wrote: »

Is there any precedent for what is deemed to constitute "a majority of the votes cast", or is this just your interpretation on it?

It's simply a tradition in constitutional interpretation.

There are six modes of interpretation: originalist, harmonious, hierarchical, natural law, purposive and literal.

Where a constitutional provision is ambiguous (i.e. majority has various sub-meanings), literal translation is the least favoured

Attorney General v Paperlink Ltd [1984] is an authority for literal disfavour, as is O'Shea v AG [1982], per Henchy J

“I agree that if the relevant sub-section of the Constitution is looked at in isolation and is given a literal reading, it would lend itself to that interpretation. But I do not agree that such an approach is a correct method of constitutional interpretation.[...] It may be said of a constitution, more than of any other legal instrument, that ‘the letter killeth, but the spirit giveth life’. No single constitutional provision (particularly one designed to safeguard personal liberty or the social order) may be isolated and construed with undeviating literalness.”

To think that the High Court or the Supreme Court would actually rely on a literal interpretation of an ambiguous provision, AND THEN go and exclude the literal, dictionary interpretations of that provision which favour the presumption of the constitutionality of a referendum... is fantasy.

TL; DR: In cases of ambiguity, literalism will always yield to core constitutional doctrines of popular sovereignty and the presumption of constitutionality. Nevertheless, even literalism necessitates the inclusion of a 'relative majority' reading of Art 47.1, since dictionaries variously define relative majorities and simple majorities as 'a majority'.

Phoebas · 24-03-2015 11:19pm

hatrickpatrick wrote: »

It probably would, indeed. I was just wondering hypothetically if it actually could be done legally, or if there was a requirement for referenda to be boolean (yes/no) questions and nothing else.

Having thought further about it, multiple referenda on the same ballot paper probably makes more sense. You could still avoid the vote being split by allowing people to select more than one option however - were you assuming in my proposal only one option would be selected?

I was.
A ballot paper with a series of options where you can choose as many options as you like is equivalent to separate ballot papers, except more confusing.

What we really need for the next abortion referendum is a multiple option ballot paper where you can vote down the paper using the STV system. The options that reach the quota would be passed. That'd be great fun.

Permabear · 25-03-2015 11:31am

This post has been deleted.

conorh91 · 25-03-2015 5:23pm

Permabear wrote: »

This post had been deleted.

Well only 20% of registered voters ratified the the 31st amendment/ Children's amendment. Some would say that makes a mockery of the process. Maybe so. Either way, it isn't the role of the courts to intervene and arbitrarily define which referenda are mockeries, nor even that they are confusing, as someone else suggested.

seamus · 25-03-2015 8:25pm

conorh91 wrote: »

Well only 20% of registered voters ratified the the 31st amendment/ Children's amendment. Some would say that makes a mockery of the process.

Some would, but it's not really the same thing.

A majority of those who voted, ratified the children's referendum.

In this multiple-choice case, there's a good chance that something would be ratified which was not approved by a majority of those who voted.

The article is pretty clear in that it requires a "majority of the votes cast" to approve the amendment. Not a plurality, and not a majority of the electorate, but a majority of the ballot.

You could theoretically shoehorn an STV system into this. However because the constitution requires approval by a majority of the votes cast, any vote which didn't specify a full set of preferences couldn't be excluded, it would have to be added to the "do not approve" bucket, because it is still part of the valid ballot.

For example, you have 3 options; A, B and No. Someone puts a 1 in the "A" box, and nothing else. A is eliminated for failing to reach the quota, but because the vote is a valid one, it must be included in the numbers when determining whether option "B" was approved by a majority.

Which, IMHO, makes it far less likely that multi-choice ballot could ever succeed because the "do not approve" bin will almost always overshadow the rest of the options by the end of the process.

Either way, it isn't the role of the courts to intervene and arbitrarily define which referenda are mockeries, nor even that they are confusing, as someone else suggested.

It isn't? Surely if someone challenges the validity of a referendum's outcome, then it is the role of the courts to decide on that.

hatrickpatrick · 25-03-2015 9:18pm

Phoebas wrote: »

I was.
A ballot paper with a series of options where you can choose as many options as you like is equivalent to separate ballot papers, except more confusing.

What we really need for the next abortion referendum is a multiple option ballot paper where you can vote down the paper using the STV system. The options that reach the quota would be passed. That'd be great fun.

That's an interesting approach - again, is there any legal reason this wouldn't be allowed?

conorh91 · 25-03-2015 9:28pm

seamus wrote: »

Some would, but it's not really the same thing.

I knew as soon I pressed 'submit reply', someone would point out it wasn't the same thing.

I know. My point was it's arguably a mockery. The courts do not exist to protect the People from making mockeries of themselves.

The article is pretty clear in that it requires a "majority of the votes cast" to approve the amendment. Not a plurality, and not a majority of the electorate, but a majority of the ballot.

As I said before, the plain language definition of 'majority' refers both to simple majorities and relative majorities, as is confirmed by my Oxford English dictionary. Some dictionaries give first preference to a simple majority, and subsequently include a relative majority.

You firstly have to remember that Oireachtas legislation, including referendum acts, enjoys the presumption of constitutionality which would imply the broadest meaning of 'majority'

You secondly have to remember that the courts have previously been asked to intervene with a referendum bill argued to be unconstitutional and refused.

You thirdly have to remember that literal translation, as previously mentioned, is in disfavour when a specific provision is ambiguous, even though I don't think a challenge would ever get that far, in light of the foregoing points.

It isn't? Surely if someone challenges the validity of a referendum's outcome, then it is the role of the courts to decide on that.

It isn't their role to intervene.

Hearing a case and establishing standing, and the submission of arguments on appropriateness of intervention is one thing but no, I don't think it is wise for the courts to tell the People they didn't really know what they were signing, and there is no basis for claiming that the courts would ever be willing to cast aside the core principle of popular sovereignty in that way.

View · 26-03-2015 1:07am

conorh91 wrote: »

Ithere is no basis for claiming that the courts would ever be willing to cast aside the core principle of popular sovereignty in that way.

The people never voted for the AV referendum system that the OP is proposing. It would require the courts to cast aside "popular sovereignty" and turn cart-wheels to introduce such a system.

And lest anyone be any doubt AV is a semi-proportional system which combines the worst features of PR and FPTP as its results are neither proportional due to there being only a single possible outcome nor "decisive" due to their being no either/or forced choice.

FreudianSlippers · 26-03-2015 12:28pm

The referendum process is a question on whether or not a Bill should be enacted. How could that possibly work as multiple choice?

conorh91 · 26-03-2015 6:22pm

View wrote: »

The people never voted for the AV referendum system that the OP is proposing. It would require the courts to cast aside "popular sovereignty" and turn cart-wheels to introduce such a system.

This is just a declaration without anything to support it.

Neither have the people ever expressly voted for the constitutional right to privacy, the constitutional right to earn a living, nor the doctrine of the tripartite separation of powers, among others. A literal reading of the constitution would necessitate the conclusion that such provisions do not exist. That would be incorrect.

In this case, we're not quite talking about painful extraction of unenumerated rights or principles, We're talking about something decidedly conservative and non radical: affording a broad meaning to a fairly ambiguous term in favour of the critically important presumption of constitutionality.

A multiple-choice referendum is a bad idea. But I am trying to answer a question of law based on the evidence, not on what I think is wise or desirable. Are you?

In so doing, what cases and materials do you rely upon?

FreudianSlippers wrote: »

The referendum process is a question on whether or not a Bill should be enacted. How could that possibly work as multiple choice?

The drafter would insert the three proposed amendments into the constitutional amendment bill, to be passed by the Houses of the Oireachtas. An actual constitutional amendment does not demand prior statutory underpinning aside from the originating instrument, establishing the referendum.

View · 26-03-2015 11:53pm

conorh91 wrote: »

This is just a declaration without anything to support it.

On the contrary, there is clear historical evidence to support it, namely, we have never held one nor sought to hold one. Nor indeed is there evidence from the initial referendum that anyone ever envisaged we hold one.

conorh91 wrote: »

We're talking about something decidedly conservative and non radical:

We are indeed. We don't operate on the basis that a referendum can be suddenly redefined to mean something it never meant before.

conorh91 wrote: »

But I am trying to answer a question of law based on the evidence, not on what I think is wise or desirable. Are you?

Yes. The clear evidence of historical precedent that we have used for decades now.

jimmycrackcorm · 27-03-2015 2:12am

What would prevent each option being asked in isolation. i.e.

Do you want option A inserted into the constitution yes /no
Do you want option B inserted ... yes / no etc

effectively worded as multiple referendums but in one go. Obviously wont work if the wording of any contradicts an other

conorh91 · 28-03-2015 5:24pm

View wrote: »

On the contrary, there is clear historical evidence to support it, namely, we have never held one nor sought to hold one.

Your argument makes no sense. It's not how constitutional law operates. You're conflating the statistical likelihood an event happening with its lawfulness.

If the courts denied the lawfulness of everything that 'has never happened', we could dispense with lawyers and the courts, and replace them with a professional historian.

I have described as best I can why multiple-choice referendums would be unlikely to meet constitutional repugnance. Rebuttals using claims of 'historical precedence' are not valid.

Real precedence - i.e. referendum case law - reflects the opposite of what you are saying.

View · 29-03-2015 9:23pm

conorh91 wrote: »

Your argument makes no sense. It's not how constitutional law operates. You're conflating the statistical likelihood an event happening with its lawfulness.

Not in the slightest.

conorh91 wrote: »

If the courts denied the lawfulness of everything that 'has never happened', we could dispense with lawyers and the courts, and replace them with a professional historian.

Courts rely on precedent established in precious cases both domestic and often also internationally when making their decisions. They also rely on common sense "dictionary" definitions.

We are holding a same-sex marriage referendum precisely because the courts did not take the view that "marriage" means whatever you want it to mean but, rather, that it meant the traditional opposite-sex marriage that people have entered into for hundreds of years.

conorh91 wrote: »

I have described as best I can why multiple-choice referendums would be unlikely to meet constitutional repugnance. Rebuttals using claims of 'historical precedence' are not valid.

See above.

Also I think you would find that the courts would not take a kind view to attemps to dress up a non-PR-STV system as a PR-STV system. Instead - and despite the absence of a detailed description of PR-STV in the constitution - they would rely on both accepted academic definitions of the voting system and our previous historical usage of it when making their judgment.

Such an attempt to redefine PR-STV as something it clearly isn't would almost certainly be deemed repugnant to the constitution very quickly as would efforts to redefine "referendum" to mean something it never has.

conorh91 · 29-03-2015 10:18pm

View wrote: »

Courts rely on precedent established in precious cases both domestic and often also internationally when making their decisions.

You're just repeating what I've said. On what precedent do you rely in making your claim?

We are holding a same-sex marriage referendum precisely because the courts did not take the view that "marriage" means whatever you want it to mean but, rather, that it meant the traditional opposite-sex marriage that people have entered into for hundreds of years.

There is in constitutional academia an ongoing debate as to whether or not same-sex marriage is repugnant to the Constitution. I don't share the view that it is; I say this to illustrate the ambiguities that can exist in the most unlikely places.

However, nobody said the Constitution means "what you want it to mean". If I had my way, multiple-choice referenda would be proscribed. This isn't about what I want, nor what you want. You need to realise that.

I have stated clearly why I believe multiple-choice referenda are compatible with the constitution of Ireland. Replying with "but no" is getting boring. Either base your argument on an authority, or this is a waste of time.

Do you have an argument or not?

I swindled the NSA · 28-04-2015 9:33pm

Before the Belfast Agreement The Green Party used to advocate a settling of the Northern Ireland question via something they called a "preferendum"

Basically a full range of options were to be given on the ballot paper with voters asked for first second third etc preferences. The interesting bit was that voters would be free to pick only one preference however their first preference would be "worth" less than the first preference of a voter who had chosen multiple preferences. The idea being to encourage a willingness to compromise among the electorate rather than a retreat to traditional entrenched positions.

Is it possible / legal in Ireland to have a multiple-choice referendum?

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