Three aspiring Independent Dáil candidates last night failed to get a High Court order directing Returning Officers to include their names on ballot papers in their constituencies without having met the new legislative requirement for 30 "assentors" to their nomination.
However, while refusing the order on grounds of balance of convenience, Mr Justice Kearns said the challenge by the three to new legislation requiring Independent candidates to have 30 "assentors" had "considerable merits" and lawyers for the State also agreed they had an arguable case.
The main challenge by the trio is to be heard at a date yet to be fixed. They claim Section 46 of the Electoral (Amendment) Act 2002, which contains the "assentors" requirement, is discriminatory, unconstitutional and a barrier to entry to the electoral process.
The court heard the assentors must not only sign nomination papers but must present themselves at the relevant local authority offices, with specified forms of photographic identification, to do so.
The new law was introduced on March 25th after a High Court decision that a requirement for Independent candidates to pay deposits was unconstitutional.
Mr Justice Kearns last night said he could not grant, at the interlocutory stage of the proceedings (the stage prior to the full hearing), a mandatory order directing the relevant Returning Officers to place the applicants' names on the ballot papers for the constituencies which they wish to contest.
The judge rejected the application on the balance of convenience and on jurisdictional issues. The court was being asked, at this interlocutory stage, to find the Act unconstitutional and to go further and order the names of the three be included on the ballot papers, without any rule as to how that situation was to be addressed. The court, should not, except in the most extraordinary circumstances, go down that road. It was more than a step too far for the High Court to take, he said
He was conscious the applicants might wish to go elsewhere (appeal to the Supreme Court), and noted the State had accepted the applicants had an "arguable case".
As all nominations have to be received by noon today, the injunction application was heard as a matter of urgency yesterday.
The three applicants were Thomas King, Denis Riordan and Bill Stack, who are seeking to run as Independent candidates in the constituencies of Mayo, Limerick East and Dún Laoghaire.
Mr John Rogers SC, for Mr King, a 54-year-old farmer, of Carrowholly, Westport, said the legislation provided for a highly bureaucratic arrangement even more onerous than the previous requirement for non-party candidates to pay deposits. Mr King had to date secured only 25 assentors.
Ms Nuala Butler, for Mr Stack, said the alternative to the order was that the three applicants would forever lose their constitutional right to proffer themselves for election in this election.
Mr Riordan , representing himself, said he could not secure five assentors. The assentors provision was a fatal impediment to his constitutional right to run for election.
Mr O'Donnell SC, for the State, said the applicants were asking the court to do something "awesome" in judicial terms. They wanted a mandatory order directing the placing of their names on the ballot papers in circumstances not just requiring Returning Officers to ignore their statutory duty but do the opposite of that duty. He said the core issue was balance of convenience. If the order were granted, there would be two different elections on May 17th.
In an affidavit, Mr Peter Green, principal officer in the Franchise Section of the Department of the Environment, said the matter was urgent and ballot papers had to be with Irish soldiers overseas by May 7th.
