Electoral Law in Ireland: Sustaining Electoral Integrity from Process, Procedures, and Precedent?

Abstract

Integrity in the management and administration of the electoral process is key to the maintenance of public confidence in democracy. In Ireland, the integrity of the electoral process is set out in general terms in the Constitution and expanded upon in legislation. This article assesses the theory and practice that shapes both the structures and processes of electoral integrity in Ireland from a legal standpoint. There are three elements to the analysis: the principle of electoral integrity as encapsulated in its many forms, the incorporation of this principle into Irish regulatory procedure and legislation, and the precedents that have developed from judicial interpretation of this legislation. The article concludes with an overall assessment of how the legal framework for the administration of Irish elections compares to international best practice norms.

Keywords:

• electoral integrity
• electoral law
• regulation
• Irish law
• Irish politics

Acknowledgement

Thanks to Eoin O'Malley, School of Law and Government, Dublin City University for early draft reviews.

Notes

1. For example in Germany, the German Political Parties Act 1967 contains regulations that govern all aspects of political parties including their internal organisation which is absent from Irish legislation.

2. Ireland has also signed up to a number of international conventions which value electoral integrity. Both the Declaration of Human Rights and the International Covenant on Civil and Political Rights state certain bedrock rights for individuals in connection with democracy and the baseline level of electoral integrity that should be present in a democracy. Article 21 of the United Nations Declaration of Human Rights sets out the freedom for electoral activities. These rights are further reinforced in Article 25 of the International Covenant on Civil and Political Rights. The Venice Commission regulations on electoral integrity view the principles in terms of suffrage, universal, equal, free, secret, and direct. The regulations also stipulate good practice guidelines in relation to the frequency of elections and the conditions required for implementing the provisions. However as these are international agreements, they have no domestic effect on the regulation of elections or the promotion of domestic electoral integrity.

3. The constitution also sets out the rules for election to the Seanad in Article 18 the rules for eligibility are the same as the Dáil. However, the mechanics of election are different than those set down for the Dáil as there is a fundamentally different constituency basis to these elections, such as university constituencies, Taoiseach's nominees, and panels.

4. An Article 26 reference allows for the Supreme Court to have a hypothetical argument regarding the constitutionality of proposed legislation. This provision is commenced by the President referring legislation requiring presidential assent to the Supreme Court for adjudication after consultation with the Council of State. The main issue with such legislation is that its constitutionality can never be tested again by a court.

5. Chief Justice Higgins also listed the provisions of electoral regulations that were set out in the constitution. ‘These other provisions of that Article (1) prohibit the enactment of any law placing a citizen under disability or incapacity for membership of Dáil Éireann on the grounds of sex, or disqualifying on the same grounds any citizen from voting at an election for Dáil Éireann; (2) prohibit the exercise by any voter of more than one vote at an election for Dáil Éireann; (3) provide for the secrecy of the ballot; (4) provide for the ratio between members of Dáil Éireann and the population; (5) impose upon the Oireachtas an obligation to revise constituencies at least once in every 12 years, with due regard to changes in distribution of the population; (6) provide for elections to be on the system of proportional representation by means of the single transferable vote; (7) prohibit the enactment of any law providing for the number of members to be returned for any constituency being less than three; (8) provide that a general election shall take place not later than 30 days after the dissolution of Dáil Éireann; (9) provide that the same Dáil Éireann shall not continue for a longer period than seven years from the date of its first meeting; (10) provide that polling at every election for Dáil Éireann shall, as far as practicable, take place on the same day throughout the country; (11) impose an obligation to make provision by law to enable the member of Dáil Éireann who is the chairman immediately before the dissolution to be deemed, without any actual election, to be elected a member of Dáil Éireann at the ensuing general election; and (12) finally, by Article 16, s. 7, they provide that, subject to the foregoing provisions, elections for membership of Dáil Éireann’ including the filling of casual vacancies, shall be regulated in accordance with law as per the judgment in In Re The Electoral (Amendment) Bill, 1983 [1984]1 IR 268, 274. He contrasted this list of constitutional electoral regulation to issues which were to be considered as minor regulatory provisions. ‘In contrast with this code of essential features of elections for Dáil Éireann , the matters which are left to be regulated by law would appear to be (a) the disqualification of citizens from voting; (b) the provisions with which citizens must comply in order to have the right to vote; (c) the fixing of the number of members of Dáil Éireann within the ratio laid down by the Constitution; (d) the provision, subject to the minimum of three, of the number of members for each constituency; (e) the fixing of the date of a general election subject to a restriction as to the maximum period after the dissolution of the Dáil; (f) the period during which the same Dáil may continue subject to the constitutional maximum of seven years; and (g) the details of the mandatory provision for the re-election of the chairman of Dáil Éireann’ as per the judgment in In Re The Electoral (Amendment) Bill, 1983 [1984]1 IR 268, 275.

6. While not the focus of this article, the issue of donations to political parties and the implicit impact this can have on the creation, maintenance, and promotion of electoral integrity must be acknowledged as this issue has proven to be a factor undermining integrity in Irish political life in the past (Byrne, 2012).

7. This point was made in the case of Graham v. Ireland [1998] 2 IR 88 where a father and son with the same name found that the applicant was precluded from voting as only one was retained on the register. Also, the development of the checktheregister.ie site has made it easier for intending voters to ensure that they are registered and the website also provides links to the relevant forms for those who need to amend their registration or register for the first time.

8. The Department of the Environment has also set out a detailed guide for those voting with disabilities that sets out procedures and entitlements.

9. Sections 2 (b) and (c) state that the conditions are as follows ‘satisfying the registration authority that the circumstances of the elector's detention in prison, Pursuant to an order of the court, are such as to rendering it likely that they will be able to go in person on polling day to vote at the polling place for the polling district and that they were ordinarily resident in the state prior to their detention in prison'.

10. However, this position could be contrasted to the widespread electoral law fraud allegations in Tower Hamlets in London relating to the use of the postal voter fraud (The Guardian, 2014).

11. The imposition of disqualification on the grounds of membership of either the Gardaí or whole time member of the Defence Forces is due to their role in upholding state security. It was mentioned by Barrington J. in Aughney v. Ireland [1986] ILRM 206 that due to their close connection with the security of the State, they have different limitations placed on their constitutional rights than other citizens.

12. Hogan and Whyte (2006: 311) argue that this restriction is legitimate as it would be ‘incongruous (if not destructive of the relationship of trust which must exist between Minister and his civil servants advisors) of a senior civil servant could stand for election, even perhaps in the self-same constituency as his Minister’. However under the provisions of the civil service circular it is stated that following a government decision of 1985, there is no prohibition on the political life of special advisors. However, ‘Personal Secretaries, Civilian Drivers and any other personal appointees of Ministers, Ministers of State, Parliamentary office holders and the Attorney General may also engage in political activity and contest local elections. However, such persons are not permitted to stand for election to either House of the Oireachtas or the European Parliament unless permitted to do so by the terms of their contract’ (Department of Finance, Circular 9/2009).

13. Hogan and Whyte (2006: 311) comment that such a restriction regarding prisoner voting may be questionable on constitutional grounds.

14. Furthermore, the issue of gender quotas in the Electoral (Amendment) (Political Funding) Act 2012 has been enacted with a view to financially incentivise Political Parties to run an increased amount of female candidates in the next General Election. The objective of the legislation is to have registered political parties run women as over 33 per cent of their overall candidates. If this objective is not achieved then the registered parties will receive a reduced amount of central government support for the next Dáil term. Many criticised this measure as it could be argued to discriminate against prospective male candidates. However, as the legislation is set out as a financial incentivisation scheme it is hard to see how critics can claim that the measure inhibits men from running as candidates. There is no prevention on men running as independents and as previously stated there is no constitutional protection for political parties. Therefore, there is not constitutional right of a political party being transgressed when such gender quota measures are being exercised. Only if the personal right of a citizen to run as a candidate in an independent nature was being restricted would such legislation be constitutionally questionable.

15. The Electoral (Amendment) (No. 2) Act 2014 makes provision for the Clerk-Assistant of Dáil Éireann to perform the function of the clerk of the Dáil where the Clerk is absent, incapacitated, or the office of Clerk is vacant.

16. This article has only been interpreted in relation to the Irish Nationality and Citizenship Act 1956 where failure to adhere to these political duties has been proven can be a means to revoke a certificate of naturalisation (Hogan & Whyte, 2006: 167).

17. For the current Dáil, 166 TDs represent the population of Ireland in a mixture of 3–5 seat constituencies. The Electoral (Amendment) (Dáil Constituencies) Act 2013 has now reduced the number of members to 158 for the next Dáil which will be elected in the next general election. The revised constituencies for the reduced Dáil are set out in the schedule to the Act.