Jim Gavin could still be elected president - here’s why and what would happen...

Fianna Fáil’s Jim Gavin could still technically be elected President of Ireland, despite withdrawing his candidacy.

Gavin cannot officially withdraw from the election, given that the ruling on nominations passed on September 24.

Section 30 of the Presidential Elections Act 1993 says that a person may withdraw their candidature before the completion of the ruling on nominations, but not thereafter.

As a result, Gavin’s name will still appear on the ballot paper on election day, which is set for Friday, October 24.

Therefore, voters can and may mark Gavin as their first preference candidate.

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If one of the other candidates, namely Heather Humphreys (FG) and Catherine Connolly (IND), receives over 50 per cent of the vote, the election will be decided on the first count.

However, if it is any closer than that, Gavin will likely be eliminated on the first count and his votes will transfer as normal under the single transferable vote system.

As he has publicly withdrawn from the race and is no longer campaigning, it appears unlikely that Gavin will receive many first, second or third preference votes.

Voters will likely be discouraged from marking any number beside Gavin’s name altogether.

However, in the unlikely event that Gavin receives the most votes under the STV system, he would be elected President of Ireland.

But what would happen in this hypothetical scenario? Most people would expect Gavin to immediately resign from the position, given the questions that would arise over the legitimacy of his candidacy.

Article 12 of the Irish Constitution states that: ‘The President may resign from office by a writing under his hand addressed to the Council of State.’

However, Gavin would not be able to resign until he was officially inaugurated as the president.

After a presidential election, the winning candidate is not officially the president until they have made the presidential declaration.

Therefore, in this hypothetical scenario, President Michael D Higgins would remain in office in the days after the election, with Gavin named as president-elect.

The inauguration ceremony must take place no later than the day after the term of the outgoing president ends, which in this case is November 12.

Although it has never occurred that the president-elect refused to assume office, the constitution does anticipate it through the vacancy provisions in Article 12.10.

If the person elected fails or refuses to make the declaration, they simply never enter office.

In that case, the office of president would remain vacant, and the Presidential Commission would immediately act as president.

Then, under Article 12.10.6, a new election must be held within 60 days of the vacancy.

So, in the unlikely event that Gavin is elected president, he would likely refuse to make the presidential declaration.

Michael D Higgins would finish his term as scheduled on November 11 and the Presidential Commission would assume the role of president until another election was held.

A new election would be organised, with nomination periods, ballots, etc., to be held within 60 days.

During that interim, the commission would sign legislation, appoint judges, accept government business and act on advice of the government.

The successful candidate of that election would be inaugurated and assume the presidency, replacing the commission.