Voting Rights and Irish Presidential Elections: Time for Constitutional Change

by Guest Post on May 22, 2017

We are delighted to welcome this guest post from Prof Colin Harvey (QUB School of Law) and Mark Bassett (Barrister). They can be reached at charvey@qub.ac.uk.

Introduction

This is an edited version of the Opening Statement delivered by Colin Harvey and Mark Bassett to the Joint Oireachtas Committee on the Implementation of the Good Friday Agreement (18 May 2017) dealing with the question of the right of Irish citizens resident outside of the state to vote in Presidential elections.

A Reasonable Constitutional Step

Thank you Chair and Committee members for the invitation to address you today; we appreciate the opportunity to discuss this issue with you.

After considerable reflection and discussion we have concluded that this is a reasonable constitutional step to take; one that is defensible and broadly in line with international and regional trends on voting rights. We welcome the fact that there is further detailed consideration of possible options, and that there is a commitment to hold a referendum.

Following on from the outcome of the Convention on the Constitution in September 2013 we have focused on the question of voting rights for Irish citizens in Presidential elections. We have explored the legal position in Ireland, the implications for Northern Ireland, as well as examined what other states have done. In particular, we are interested in non-resident voting rights, and the questions it raises around equal citizenship (including, but not limited to, Irish citizens in Northern Ireland). Overall support for this relatively modest initiative was plain at the Constitutional Convention. There also appears to be widespread political support for taking this forward, but it will be intriguing to watch the debate as it unfolds (particularly when the discussion turns to the detailed implications for Northern Ireland and some of the practicalities). There is a real risk that what is a small step away from a comparatively restrictive regime may be presented in rather more radical and alarmist terms.

Ireland’s relatively restrictive system

Ireland is relatively generous in granting citizenship, but it has one of the more restrictive systems when it comes to an entitlement to vote for citizens, as it generally ties the right closely to current or recent residence (an individual’s entitlement to vote in the general election and Presidential elections is contingent upon being on the register of Dáil electors in a particular constituency). For a state, like Ireland, with so many citizens resident elsewhere, legitimate questions arise over what that citizenship entails and what it should bring with it. Ireland has particular circumstances that make this a pressing question. Much has been done to celebrate and acknowledge the role of the Irish diaspora, and there is oft cited concern expressed for the rights of Irish citizens in or from Northern Ireland (with parity of esteem and mutual respect embedded in the fundamentals of the Good Friday Agreement). But what does it really mean today to be an Irish citizen resident outside of the state? For most it appears to mean very little in terms of democratic entitlements in Ireland; a position that contrasts starkly with much of the inclusive rhetoric about Irish identity and belonging.   The question is complicated further by the constitutional position of Northern Ireland – where there is a declared right (underpinned by the British-Irish Agreement) to identify and be accepted as Irish or British or both (as an entitlement/birthright and a matter of choice). As one example, Irish citizens born and resident in Northern Ireland (and who may have lived their entire life on the island of Ireland) may never get to vote in any Irish elections. Is this a genuine problem of equal citizenship or is it a logical outworking of the division of democratic entitlement on the island and more generally?

We believe that giving Irish citizens who are resident outside the state (including those in Northern Ireland) the constitutional right to vote in Presidential elections is a basic step in recognising the significance of equal citizenship on an inclusive basis.  It would give concrete meaning to the warm words about citizenship, generate interest in (and awareness of) democratic participation in Ireland (although the lessons from elsewhere indicate that participation rates may not meet initial expectations), perhaps provoke a wider debate about who should be entitled to vote, and it is securely in line with emerging trends.

Transcending party politics

There is a risk that this discussion gets lost in partisan party politics. Different parties will have differing views. We believe that this is an issue that transcends party politics, and speaks directly to what it means to be an Irish citizen in a context where the Irish community is dispersed throughout the globe and is significantly transnational in nature.  That is not to argue that party politics is absent; evidence suggests that the reasons for opting to endorse or reject external voting may be highly politically partisan. Support can, for example, be based on little more than assumptions (or current evidence) about voting patterns, and therefore who might benefit politically. For example, it is possible (but only possible) that participation might be high in Northern Ireland.

This does not seem (to us) to be a convincing basis for either support or rejection of the idea of external voting for the Presidency. If anything, it might encourage all those standing for the Presidency to engage more extensively with what it means to be Irish now (and to reflect systematically on the diversity of Irish citizenship). Ultimately it might prompt all political parties in Ireland to think productively about the position of non-resident Irish citizens.

We believe it is more fruitful to concentrate on the questions of principle that arise from notions of equal citizenship, to reflect on the content of voting rights, and to think through the practicalities of implementation in the event of a positive outcome in the referendum.  Distrust of how Irish citizens might vote in a Presidential election is not a persuasive reason for rejecting democratic inclusion; it does not appear particularly democratic in spirit.

The constitutional significance of the Presidency

At its heart the Presidency is a symbolic office with constitutional significance for all Irish citizens, and everyone in Ireland. It represents, and has been largely accepted to represent, the citizenry as a whole rather than just the state. He or she is largely insulated from controversial political choices. It is the institution that best represents nationality and citizenship. The method of choosing the office holder should match the intended result. There is, therefore, a particularly strong argument in this instance for the electorate being based on nationality rather than nationality and residence. It is a symbol of the nation chosen by citizens.

Complex questions

Although our focus is on Presidential elections, the types of election where external voting may apply can vary too: legislature; Presidential; referendums; and sub-national. It is worth noting that our argument here is only about Presidential elections.   Concerns about the implications for external voting in one of these elections may not apply to others; and assumptions about how people will vote (and in what numbers) in different elections can be wrong. Many questions arise from comparative experience. Should it be for one particular type of election only, and, if so, how might the impact of its use be kept under review? If it is accepted, what legal form should it have? If it is permissible then how should it be conducted? Should this be by personal voting, postal voting, proxy voting or even electronic voting (or a combination of these methods)? Merely accepting the idea in principle does not resolve these complex questions (as the current Irish Government has recognised); but we believe there are answers (evident in the fact that other states have been able to operationalise the principle). We also note (and welcome) that the options paper sketches out possible ways forward.

Voting rights and democratic experimentalism

In Ireland each electoral franchise has a separate legal basis, a distinct character and seeks to achieve different objectives. The franchise does not align completely or neatly with any of the predominant principles of granting political rights in a democracy. It cannot be said to follow the ‘all contributing’ or ‘all subjected’ principles because although all residents (who meet the relevant eligibility criteria) can vote in local elections, many people resident in Ireland are excluded (on nationality grounds) from voting in other elections and referendums even though they are subject to, for example, taxation and state regulation. Neither is it entirely consistent with the ‘stakeholder’ principle, which supposes that those who hold a special connection or allegiance to the state should participate in democratic life, since non-resident citizens are largely excluded.

The national-resident electorate approach that is adopted can best be described as a result of political evolution and can be criticised as under-inclusive (particularly with respect to those who are resident outside the state). Viewed in this context, the inclusion of non-resident Irish citizens in Presidential elections seems like a limited exercise in democratic experimentalism that is long overdue.

Northern Ireland and the Good Friday Agreement

Our focus is on the voting rights of Irish citizens, wherever located; we have a particular interest in the Northern Ireland context. It seems to us that the exclusion of Irish citizens in Northern Ireland from voting in Presidential elections cannot be sustained, and inclusion should not have to wait for a future decision to leave the UK (through the exercise of the self-determination mechanisms of the Good Friday Agreement). We view this as one element only of guaranteeing forms of equal citizenship more aligned with the welcoming spirit so often evident in the language of practical politics.

There is nothing in the Irish Constitution or the proposed amendment(s) that should be a cause of anxiety for those who have no wish to take up their entitlement to Irish citizenship or to vote in a Presidential election.  On the important issues of sovereignty and identity there is broad agreement. The Good Friday Agreement is a constitutional bridge between Britain and Ireland. The right to be Irish in the Agreement goes beyond identity however. The core of that right is the entitlement to the legal status of Irish citizenship. Extending the franchise for Presidential elections should be seen as reinforcing the principles of the Agreement rather than undermining them in any way. The effect of Irish citizens voting for their President does not diminish the British citizenship or Northern Irish identity of anybody else.

 

A new conversation about voting rights in Ireland

We would not want to suggest that external voting is our only concern, and we caution against narrow forms of nationalism that neglect Ireland’s wider commitments to human rights. It is essential to celebrate the increasingly diverse and intercultural nature of Irish society. There are many questions raised by debates on voting rights, including the considerable number of people who are routinely excluded precisely because they lack the citizenship of the state they are in. We therefore believe that discussion of voting rights in Presidential elections is one part only of a larger conversation about extending democratic inclusion in our increasingly interdependent world. It is a principled reform that can be justified, reflects comparative experience and that can be realised in practice.

 

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