Technically, Jim Gavin could still win this election

It's an unforeseen situation to have a candidate who has withdrawn on the ballot paper — what happens to the votes and the preferences — and can it be challenged?

What would happen in the event that Jim Gavin were eventually to top the poll? The answer, it seems, is that it would be open to him to take the Presidential Oath and assume office. File photo: Conor O'Mearain/PA

The rather outlandish stories you will have heard about Jim Gavin’s status in the presidential contest, although he has apparently withdrawn, are in fact correct. 

They flow from the Presidential Election Act, 1993. By section 30, "a person in respect of whom a nomination paper has been delivered…may withdraw his candidature at any time before the completion of nominations, but not thereafter". 

As we shall see, the punch lies in the last three words. In particular, four consequences follow from this section, the thrust of which is that a candidate who has withdrawn after nomination is treated, in law, substantially as if they are still a candidate. (A candidate who dies is treated differently, in the next section.) 

Four consequences follow from this ‘fiction’, regarding a candidate who withdraws. In the first place, Mr Gavin’s name remains on the ballot paper.

Secondly, if one votes No 1, for Mr Gavin, does one’s vote transfer onward to the No 2 preference, in the usual way? Yes, certainly: this follows from the fact that Mr Gavin is deemed not to have withdrawn.

Thirdly, to take a question much discussed on the airwaves, consider if Mr Gavin were (as seems unlikely) to receive more than 25% of a quota (half of those voting, plus one). In that case, then under the usual law, he would be reimbursed, by the State, for up to €250,000 of his electoral expenses.

Finally and most surprisingly, what would happen in the even more unlikely event that Mr Gavin were eventually to top the poll? The answer, it seems to me, is that it would be open to him to take the Presidential Oath and assume office. 

David Gwynn Morgan: 'One should notice that there was no bar to replacing the original Fine Gael candidate by Heather Humphreys since this change occurred before the date of nomination.'

This would flow from the fact that, as mentioned earlier, the withdrawal of his candidacy was made invalid because it occurred after nomination. The reader may well ask what inspired the rather surprising provision, quoted above, with its unexpected consequences. 

Reading the Dáil and Seanad debates on the bill which became the 1993 Act, it seems that the intention behind this central provision was this: to prevent those parties or persons who had backed a candidate, who withdraws, from being disappointed, in that since the nomination date had passed they would be unable to nominate a replacement. 

But judging by the reactions in Fianna Fáil, this appears to have been an optimistic assumption.

One should notice that there was no bar to replacing the original Fine Gael candidate by Heather Humphreys since this change occurred before the date of nomination.

The discussion here has been all about the 1993 Act and not the Constitution. The reason is that, as in other areas, the Constitution deals with principles, such as the rules regarding nominating authorities for presidential candidates, leaving matters of detail and implementation to be covered in legislation, like the 1993 Act.

Challenge to the election result

What are the arrangements for a post-election challenge to the legality of the rather unexpected developments of the past few days? The answer is that the 1993 Act now establishes for the first time, a special (supposedly abbreviated) procedure, a Presidential Election petition, modelled on Dáil Election petitions. 

In view of its significance, this may be brought only with the leave of the High Court; and within seven days of the declaration of the election result.

Further, it may be brought only by candidates (presumably, this includes Mr Gavin), their agent or the DPP. The DPP would be making a rare appearance outside the criminal field presumably because the politically-appointed Attorney General could be regarded as too partisan to be used in this position.

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The sort of grounds on which such a petition could be brought would be: an electoral offence; obstruction in the conduct of the election; or ‘a mistake or other irregularity which is likely to have affected the result’. 

Even leaving aside the second part (‘affecting the result’), it seems that the Gavin episode would not fall within this category, just because it is expressly contemplated in the legislation.

In short, a lot of things follow from the last three words of section 30.

• David Gwynn Morgan is Emeritus Professor of Law at UCC.