Vote early, but not too often!

[THIS BLOG IS TAKING A BREAK OVER EASTER. RESUMING 10 APRIL]

On 8 March last, Irish voters had the opportunity to accept or reject two proposed amendments to the country’s constitution. This was the first nationwide vote of any kind since the last general election in February 2020 and the first referendum on the constitution since May 2019. But there is a queue of elections due within the next 12 months; local and European elections on 7 June and a general election by the middle of next March. Do the referendums offer any pointers about the political mood of the country?

First, brief background written in my professional capacity as an “ordinary person”, not a lawyer.

One of the proposed amendments was to expand the definition of “Family” within the document from an institution founded on marriage only to one based on marriage or other durable relationships (the Family amendment).

The other involved the deletion of a clause conferring social value on a woman’s life within the home and its replacement by a clause committing the State to strive to support the provision of care by members of a family to one another (the Care amendment).

The proposals were endorsed by most of the political parties or groups represented in Dáil Éireann comprising an overwhelming majority of its members. The last public poll published a fortnight before the vote suggested that both proposals would pass by comfortable margins.

However, both proposals were roundly rejected, the Family amendment by 68% to 32% and the Care amendment by 74% to 26% on turnouts of approximately 44% of eligible voters, low but by no means the lowest turnout for a constitutional referendum.

Of course, the results of the referendums have been pushed sharply into the background of the political spotlight by the subsequent resignation of Leo Varadkar as leader of Fine Gael and, prospectively, as Taoiseach. For what it is worth, my hunch is that the referendum results did not cause Mr. Varadkar’s decision though they surely influenced the timing of its announcement. But the inquest on Mr. Varadkar’s legacy is for another blog on another day.

This analysis of the implications of the referendums is in the context of the history of constitutional referenda, especially since the turn of the century.

Broadly speaking, proposed amendments fall into two categories.

One is proposals that entail specific consequences. For example, the legalisation of same sex marriage flowed directly from the positive vote in the marriage equality referendum of 2015. And the repeal in 2018 of the “right to life” eighth amendment ushered in legislation providing for the availability of abortion. The last referendum before these ones, in 2019, provided for specific changes to the regulation of divorce.

However, specificity of consequences is no guarantee of electoral endorsement. For example, voters rejected by a narrow margin a proposal in 2013 for the abolition of Seanad Éireann and, by a much wider margin in 2015, a proposal to reduce the minimum age of eligibility to run for President from 35 to 21.

The second category of referendum is on proposals about the orientation rather than the specifics of national policy. The so-called Children’s Rights referendum of 2012 was a hybrid of some specific measures and a general recognition and affirmation of the natural and imprescriptible rights of all children without further specification of how those rights should be protected and vindicated. Incidentally, one would need a strong microscope to identify improvements in the lives of children over the decade since that are attributable to the passage of this amendment.

I am indulging another hunch rather than asserting a certainty in suggesting that, all other things being equal, proposals in the latter “symbolic” category are a tougher sell to voters because the implications are uncertain when they are casting their vote. That circumstance creates a bias towards the status quo of the devil they know rather than the one they don’t.

I would venture too that this bias was especially relevant to this year’s referendums because the known devil was altogether harmless. The language of the existing clauses to be amended or replaced might well have belonged to another era, but they posed no specific threat of and offered no specific opportunity for social change. Voting “no” carried no known cost nor benefit. The same could fairly be said for voting “yes” to the proposals too. But opponents of the changes were able to stir up the cloudy dust of uncertainty. The existing clauses had been in place since the adoption of the Constitution. They were established even as vestigial as the human appendix. The new was unknown and maybe not so dormant.

There is a long and honourable tradition of voters being occasionally “bolshie” about proposals to amend the constitution. We should remember that the majority in favour of adoption of the constitution itself by referendum in 1937 was “only” 56.5%. And the first proposed amendment in 1959 to change the electoral system was defeated by an even narrower majority — 51.8%. Voters have twice rejected the adoption of EU treaties (Nice and Lisbon) in the probable knowledge that they would have little choice but to endorse them eventually — which they duly did in subsequent referenda.

The referendum to abolish the Seanad in 2013 perhaps best illustrates voters’ capacity for truculence in these matters. Voters faced the difficult dilemma of whether to administer a bloody nose to the politicians by abolishing this sinecure-ridden quango or by rejecting this transparently populist sop from the then Taoiseach, Enda Kenny. In the end, a narrow majority opted for the latter.

The most recent referenda offered voters a similar opportunity to deliver a free hit to the politicians. Nothing specific hung on the results and the proposed wording in both cases represented a timid attempt to appear to be doing something useful without actually doing anything much at all. The wordings were like the proverbial Lanna Macree’s dog. They went a bit of the way with everyone but went a distance with very few.

Lame language fed into a limp-wristed campaign in support of the proposals that got only the result it deserved. Lacking manifest conviction in the merits of the proposals, the campaign was entirely unconvincing, predicated on a presumption that it might eke out majorities based on the general “worthiness” of the proposals, weak and vague though such worthiness was.

So, the outcome of these referenda indicates a professional political class, not merely the government parties, that is (or in Mr. Varadkar’s case “was”) not entirely in touch with the pulse of their electorate, even if it does not establish that they are altogether out of touch with it. Does it amount to a rejection of our establishment politicians or simply an easy kick up the rear end to chastise them and encourage them to up their game. The elections in June will give us an early answer to that question.