Jim Gavin’s name should not be on the ballot paper for the presidential vote next week. It has been suggested that the decision not to remove his name after he withdrew from the contest is defensible from a logistical and administrative point of view, given the processing and printing of ballot papers after the close of nominations and the issuing of postal ballots. But the decision raises troubling questions about the election count, which should have been addressed given his early withdrawal.
The Electoral Act of 1992 includes a provision for the relevant minister – in this case James Browne, Minister for Housing, Local Government and Heritage – to issue an order of modification for the conduct of an election in cases of “emergency or special difficulty”. The Gavin case clearly represents a “special difficulty”, but there has been no clear explanation from Browne as to why he avoided making use of such an order. Surely voters are entitled to know? And why did it take so long to decide? Browne was crystal clear in his endorsement of Gavin, writing that he would “be an outstanding president of Ireland”. He has offered no such clarity about why it remains theoretically possible that Gavin could be elected president after his withdrawal from the campaign.
That is highly unlikely, of course, especially given Thursday’s The Irish Times/Ipsos B & A poll results which put him at just 5 per cent. But if neither Catherine Connolly nor Heather Humphreys reaches over 50 per cent plus one of the poll, and the gap between them is less than the votes for Gavin, his transfers could decide this election. This may look like an outside chance, but it should not have been left as a possibility that the outcome will be decided by the transferred votes of a candidate who announced on October 6th: “I have decided to withdraw from the presidential election contest with immediate effect.”
Art O’Leary, the chief executive of the independent Electoral Commission, has stated: “Jim Gavin has withdrawn from campaigning. He has not withdrawn from the presidential election campaign . . . the law is very clear . . . candidates can only withdraw up until the close of nominations.”
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The close of nominations was September 24th. But Gavin, as is clear from his own words, has withdrawn from the campaign.
In the contested presidential elections to date where there have been more than two candidates, transfers have played a decisive factor, except for 2018, when Michael D Higgins was elected on the first count from a field of six candidates. In 1945, Fianna Fáil was hoping that its candidate, Seán T O’Kelly, up against Fine Gael’s Seán Mac Eoin and Independent candidate Patrick McCartan, would win on the first count. As it turned out, he had to wait until the second count, when McCartan’s transfers elected him, even though the bulk of McCartan’s transfers went to Mac Eoin.
In 1990, for all Fianna Fáil’s Brian Lenihan’s woes during the campaign, he still polled 44.1 per cent of first-preference votes. Mary Robinson was elected when the vast majority of the transfers of the third-placed candidate, Fine Gael’s Austin Currie, went to her. In 1997, with five candidates, Mary McAleese was elected on the second count after the distribution of the votes of the candidates ranked third, fourth and fifth on first preferences – Dana Scallon, Adi Roche and Derek Nally. In 2011, with seven candidates, Michael D Higgins was elected on the fourth count after the transfers of Gay Mitchell and Martin McGuinness pushed him over the quota.
We are very attached to our single transferable vote, and why wouldn’t we be? In Mike McCormack’s brilliant 2016 novel Solar Bones, the narrator ponders this system with pride: “the single transferable vote Amen . . . the electoral instrument so ingrained in the political psyche that it must surely be possible now to isolate its neural correlate, a twitching cluster of synapses to which we could point as proof that democracy in all its shades and hues inheres in our very souls”.
We might still feel moved to such eloquent expression next week given that election counts are always more interesting under our system when transfers come into play. But we are not used to a non-candidate candidate staring at us in the ballot box; a non-candidate candidate whose votes could be decisive.
What to watch for is the extent to which this unprecedented situation for a presidential vote will be handled by voters, whether it yields a high number of spoilt votes and whether the legitimate votes for him will help elect our next president. Either way, the question of why Gavin’s name remained is likely to create pressure for clarity about what constitutes a “special difficulty” in relation to the administration of elections. There is a serious question here about the integrity of our electoral process, which is rightly much vaunted for its endurance and robustness. That question merits more public frankness from those who make decisions about electoral legislation.
