The Government’s failure to revise the constituencies in advance of the general election, when it knew there was a problem following the publication of the preliminary census data, was always a risky strategy. The inevitable legal challenge means our political system is entering uncharted waters.

It’s now possible that Dr James Reilly (FG) and Dr Leo Varadkar could be returned for Dublin North and Dublin West respectively, yet be prevented by the High Court from taking their seats in Dáil Eireann. In theory, Dr Jimmy Devins (FF) and Dr Bill Tormey (FG) could have come unstuck in Sligo-North Leitrim and Dublin North-West on the preliminary figures, although both now seem safer in this regard given the final results.

The situation is governed by a muddy mixture of constitutional and electoral law. Article 16 of the Constitution states, among other things, that:

• Dail Eireann shall be composed of members who represent constituencies determined by law (i.e. by the Electoral Acts).
• The number of members shall from time to time be fixed by law, but the total number of members of Dail Eireann shall not be fixed at less than one member for each 30,000 of the population or at more than one member for each 20,000 of the population.
• The ratio between the number of members and the population of each constituency, ascertained at the last preceding census, shall, so far as it is practicable, be the same throughout the country.

One of the big the political controversies last year was whether a redraw of the constituencies would be needed to take account of the increased population and its changed distribution. In its preliminary census report, the Central Statistics Office figured that Dublin West was the only constituency that breached the upper population-to-members limit. It turns out now that Dublin North does so as well. Significantly, however, there was and is no constituency whose population per member is less than 20,000.

After the preliminary figures were published, the Government claimed there was much case law preventing a redraw on those data. In truth there is actually very little. The main case is O’Donovan v Attorney General, which had nothing to do with the standing of preliminary versus final census data.

In some respects, Article 16 is a vague and inconsistent provision, which has never been rigorously tested in the legal sense. Constituency boundaries are to be determined by law. The ratio of members to population is to be found from the last preceding census. This ratio is to be the same throughout the country, but only in so far as this is practicable. And constituencies are to have due regard to changes in population distribution.

Article 16.2.2 is the only provision that contains explicit upper and lower numerical limits for parliamentary representation i.e. not less than 1 TD per 30,000 people, but not more than 1 TD for every 20,000 of the population. That’s why Dublin West and Dublin North are such a problem.

So what exactly does the Constitution demand? To maintain equality of voting power and representation by having the same broad ratio of population to members in all parts of the country? Or simply to ensure that there is one member of Dail Eireann for every 20,000 – 30,000 people?

This raises all sorts of interesting questions:

• What exactly do the words “last preceding census” mean? Do they mean collecting and gathering the completed census forms; or collecting, gathering and processing the data supplied on those forms; or to the doing of all of these things and the subsequent publication of the results in any form, whether preliminary or final?
• What do phrases like “due regard” and “so far as it is practicable” mean and who should determine their meaning and weight?
• Leaving Dublin West and Dublin North to one side, can it be proven that people in Meath West (population 29,063) are less effectively represented than those residing in Dun Laoghaire (population 22,833) given that both constituencies come closest to, but don’t actually breach the absolute members-to-population requirement?

Although the census does show big changes in the population and its distribution, the consequence need not be a revision of all constituencies. This is because population variances, which though they were rejected by the High Court in O’Donovan, were later upheld by the Supreme Court.

In 1961, the Chief Justice made a very important finding:

“[Article 16.2.3] recognises that exact parity in the ratio between members and the population in each constituency is unlikely to be obtained and is not required. The decision as to what is practicable is within the jurisdiction of the Oireachtas … whose members have a knowledge of the problems and difficulties to be solved which this Court cannot have. Its decision should not be reviewed by this Court unless there is a manifest infringement of the Article. This Court cannot, as is suggested, lay down a figure above or below which a variation from what is called the national average is not permitted.”

Again, we’re back to the position the High Court might take on the legal challenge, and in particular, how weighs different parts of Article 16. It’s possible there could still be challenge on the basis that as many as nine constituencies are now, by virtue of recent changes, too far outside the range of the variances enacted historically by the Oireachtas (± 8%).

These would include two of the constituencies where there are medical doctor candidates: Dublin North, where the population variance is almost 18%; and Dublin West, which has a variance in excess of 21%.

The remaining 34 constituencies all have a population within the ± 8% variation enacted historically, and so could stay as they are, assuming the Oireachtas should bet the house that the Courts would not interfere.

So, if you contend that the primary constitutional requirement is to ensure one TD for every 20,000 to 30,000 people, the two problem children are Dublin West and Dublin North. If on the other hand, you believe that there has to be a strict or approximate equality of representation, which was a principal finding in O’Donovan v Attorney General, then we are indeed dealing with a very large, very dysfunctional family of constituencies.

The Government is now saying it will do the redraw after the general election. But this opens up the prospect of a further challenge beforehand for a breach of the Electoral Act 1997. Section 5 says that “upon the publication by the Central Statistics Office, following a Census of Population, of the Census Report setting out the population of the State by area, there shall be established by the Minister, by order, a Commission to perform [a revision].” Should the preliminary census report not have been the trigger for a ministerial order establishing a new Commission?

We’ll have to wait and see whether the post-election drama is about who forms the next government, or why a constitutional crisis that prevents some TDs from taking their seats in the Dail, was allowed to develop.

The Government will not be thanked if it is found to have played fast and loose with the peoples’ basic rights, or for inflicting a second election upon them when earlier, sensible steps would have solved the problem.