Article 16 provides for Dáil elections in general terms. The maximum duration of a Dáil is seven years under the Constitution. However, it is fixed at five years by the Electoral Act. Presidential elections are to take place every seven years. Seanad elections are to be held within 90 days of the dissolution of the Dáil.
Between elections, a vacancy in a Dáil seat is filled by a by-election. The writ is moved by the party concerned. At one point, there was no period in which a writ was required to be moved.
However, in Doherty v Government of Ireland, it was held that a long delay in a bye-election was unjustified. In that case, the seat had been vacant for 16 months and attempts by the opposition to move the writ for the bye-election had failed. It was claimed that the failure of the Dáil to move the writ could not be challenged by the courts but the court held that it was justiciable due to the unreasonable delay. The Electoral (Amendment) Act 2011 provided that the writ must be moved within six months.
Article 16.1.2 provides that all citizens and such other persons in the State as may be determined by law, without distinction of sex, who have reached the age of 18 years, are not disqualified by law and comply with the provisions of law relating to the election of members of Dáil Éireann shall have the right to vote in elections for members of Dáil Éireann, presidential elections and referenda.
Irish and British citizens and citizens of other States with whom there is a reciprocal arrangement who are resident or ordinarily resident in Ireland may register to vote in Dáil elections. Only Irish citizens may vote in referenda or presidential elections.
A 1983 referendum amended the Constitution to permit noncitizens to be allowed to vote on such terms as may be determined by law. The Electoral Act 1985 allows resident British citizens and citizens of reciprocating EU States to be registered as electors in Dáil elections. Prior to the referendum, the Electoral Amendment Bill 1983, which purported to allow British citizens to vote in Dáil elections, was held to be unconstitutional.
An attempt by a severely physically disabled person to secure postal voting was rejected in Draper v. Attorney General in 1984. However, postal voting for disabled and wider categories of persons was introduced shortly afterwards.
The Supreme Court has held that the inability of prisoners to vote in elections by reason of being detained was not unconstitutional. The Electoral Amendment Act 2006 has since facilitated voting by prisoners.
Representation of the People
Article 16.2 requires that there should be one TD for every 20,000 to 30,000 persons in the population. Each Dáil constituency must have at least three seats. Generally, constituencies have either three, four or five members. Historically, there existed much larger seats, with up to seven members.
Article 16.2.3 requires that, in so far as practicable, constituencies should be arranged in such a way that each vote has the same value in electing members of the Dáil. The ratio is to be determined with reference to the last census. The Oireachtas is obliged to revise the constituencies at least every 12 years.
A Constituency Commission was established under the Electoral Act. This must consist of a judge, the Ombudsman, the Secretary of the Department of the Environment and the Clerks of the Dáil and Seanad. The Commission reports to the Dáil on its recommendations for the constituency boundaries, subject to the requirements provided, including the number of members.
The number of TDs for each constituency is to be between three and five under the Act. County boundaries are to be maintained in so far as possible. Geographic consideration is to be taken into account, as is the extent and density of the population. An attempt should be made to maintain the continuity of constituencies.
In O’Donovan v Attorney General, it was found that the arrangement of constituencies breached the constitutional requirements. The average figure across all constituencies was one TD for every 20,000 persons but in four constituencies this number was as low as 17,000 and there were three with one TD for every 23,000 persons.
This had lead to the overrepresentation of larger constituencies on the western seaboard, which is not permitted. The objective of the Article is to achieve near equality of parliamentary representation as can be obtained while having regard to practical difficulties.
Difficulties of an administrative and statistical nature, so plain to be seen that it may safely be assumed that they had been in the minds of those enacting Constitution, may qualify as legitimate practical difficulties. Difficulties in the operation of the parliamentary system should not be considered in determining what is practicable.
Following the case, a new revised constituency arrangement was referred by the President to the Supreme Court under the Electoral (Amendment) Act 1961. The court accepted that exact equality was not required, but parity should be secured in so far as capable of being carried into effect in a practical way, having regard to such practical difficulties as exist and to which they may legitimately have regard in the context of the Constitution. The practical considerations to be taken into account and the weight to be afforded to them are primarily matters for the Oireachtas.
In Murphy v. Minister for the Environment, the case was made that in five constituencies the representation ratio was more than 10% away from the national average, with reference to the 2006 census. The High Court indicated that there was no set variance which would trigger unconstitutionality. The courts take a broad view as to whether the constituencies as a whole are, in so far as practicable, proportionate.
Constituencies are to be reviewed, with reference to the most recent census, at least every 12 years. However, if statistics from a census show a significant shift in population, the Oireachtas should take steps sooner. They may operate on the basis of preliminary reports.
Irish citizens only may be candidates for the Dáil, Seanad and Presidency. Candidates for membership to the Dáil or Seanad must be at least 21 years of age. Candidates for the presidency must be at least 35. A referendum to reduce the age for presidential candidacy was defeated in May 2015.
Persons of unsound mind, serving a prison sentence over six months, undischarged bankrupts, members of the Defence Forces and An Garda Síochána, permanent civil servants and members of a local authority are not eligible to be candidates in Dáil elections. The Local Government (No. 2) Act 2003 prohibits membership of both the Dáil and Seanad. In Ring v. Attorney General, a challenge to the Act was rejected.
Candidates must pay a deposit of €500 or be assented to by 30 registered electors. In King v. Minister for the Environment, the requirement was upheld, but the requirement that electors attend a designated office for verification of their assent was held invalid.
The requirement for a deposit was not held to be discriminatory. A challenge to the practice of having candidates listed in alphabetical order on the ballot sheet was rejected in O’Reilly v Minister for the Environment despite the fact that there was statistical evidence that persons whose names were higher in the ballot paper tended to receive higher preference votes.
Differentiation of permitted expenditure limits based on whether persons were existing members of the Oireachtas was held invalid in Kelly v. Minister for the Environment 2002.
There are ceilings on expenditure by candidates and parties in Dáil, presidential and European elections. The ceilings are higher in larger constituencies (€30,150 in three seat constituencies, €37,650 in four seat constituencies and €45,200 in five seat constituencies). Parties may incur no more than 50% of these sums on behalf of a candidate. Election expenses of up to €8,700 are reimbursed by the State.
The election is to be by way of a secret ballot. In McMahon v Attorney General, the retention of a number of counterfoils for 12 months for the purpose of election challenges was held to be invalid. The counterfoil had the valid paper number and the voter’s number so that it was possible to ascertain how a person had voted.
The Supreme Court held by a majority that the procedure was impermissible in view of the requirements for a secret ballot. The Constitution guarantees the voter that his vote will be secret. The Constitution, therefore, requires that nothing should be done which shall make it possible to violate that secrecy.
It was agreed that a voting system which permitted State officials to note the number of the ballot paper of every voter and which required this information to be stored for a year after the poll offended against the spirit and substance of the declaration that the voting shall be by way of secret ballot.