Bye-elections and the Constitution

Grolschevik

Hi lads,

I was just thinking about this...

Does the bye-election process as we currently run it go against the constitutional requirement that TDs be elected in a system of proportional representation?

Article 16. 2. 5°:
The members shall be elected on the system of proportional representation by means of the single transferable vote.

Article 16.7:
Subject to the foregoing provisions of this Article, elections for membership of Dáil Éireann, including the filling of casual vacancies, shall be regulated in accordance with law.

I would think that the current system surely compromises proportionality in that constituency, favouring as it would the larger parties.

Would it be more in keeping with the aims of proportionality for either all seats in the constituency to be up for re-election (more democratic), or for the new TD to be co-opted from the same party as the last TD (less democratic)?

Nothing in article 16.7 seems to preclude this, and it could be argued that 16.2.5 requires it?

I suppose what got me thinking is best expressed in an example where, say, a smaller party's TD dies or resigns, precipitating a bye-election. After all other candidates are eliminated via the STV system, the effective winner would be the one that gets 50% + 1; I can't imagine other than that a party that routinely gets a much higher percentage of the vote than another would have a systematic advantage.

So the Workers' Party TD dies: it's almost a given that, in real terms, a Fianna Fail or FG or even Labour TD would be elected in the bye-election. But if the original general election result was a reflection of proportionality, then is there an issue?

Of course the real point is, I suppose, that proportionality in the case of one seat is impossible, hence the idea that bye-elections as we run them seem out of accord with the notion of preserving/reflecting proportionality.

Thoughts?

Mary Hairy

Grolschevik wrote: »

Hi lads,

Of course the real point is, I suppose, that proportionality in the case of one seat is impossible, hence the idea that bye-elections as we run them seem out of accord with the notion of preserving/reflecting proportionality.

Thoughts?

In practice the opposite happens. Minor party or independent candidates often win bye-elections.It has been years since a government candidate won a bye-election. A substitute system like that used for europe would be an alternative. The real problem with bye elections is that people vote in an entirely different manner in them. When Enda Kenny was elected many Fianna Fail voters voted for him in order to protect their own local Fianna Fail TD. Their own TD would have been vulnerable wth asitting running mate at the next general election.

Grolschevik

Mary Hairy wrote: »

In practice the opposite happens. Minor party or independent candidates often win bye-elections.It has been years since a government candidate won a bye-election. A substitute system like that used for europe would be an alternative. The real problem with bye elections is that people vote in an entirely different manner in them. When Enda Kenny was elected many Fianna Fail voters voted for him in order to protect their own local Fianna Fail TD. Their own TD would have been vulnerable wth asitting running mate at the next general election.

True, but the point would remain that the filling of one seat in a bye-election cannot actually reflect proportionality.

Grolschevik

Grolschevik wrote: »

True, but the point would remain that the filling of one seat in a bye-election cannot actually reflect proportionality.

Using a system of substitution would completely keep independent candidates out of the loop and would essentially give a legislative rubber stamp to the party system.

Grolschevik

Deleted User wrote: »

Using a system of substitution would completely keep independent candidates out of the loop and would essentially give a legislative rubber stamp to the party system.

The option of all the seats in the constituency going forward for re-election is the only one I can think of that would both be democratic and reflect proportionality.

Mary Hairy

Grolschevik wrote: »

True, but the point would remain that the filling of one seat in a bye-election cannot actually reflect proportionality.

In presidential elections there is only one seat and the PR system is used. It can also be argued that 3 seater constituencies are less reflective of proportionality that 4 or 5 seater. A quota is 25% of the poll in a 3 seater, 20% in a 4 seater and 16% in a 5 seater.
In a three seater a party with 50% of the vote gets two seats i.e. 66% of the seats. In a four seater it gets 2 seats i.e. 50% of the seats and in a 5 seater gets 3 seats i.e. 60 % of the seats.
This principle was used by governments in setting constituency boundaries until the independent commission stopped it.
The constitution simply stipulates that constituency sizes should be 3, 4, or 5 seats. To be truly proportional the whole country would have one constituency. Even the distribution of the surplus in our PR system is not strictly proportional.There is thus no strict requirement for proportionality. Most things cancel out and the Dail is roughly proportional to the votes in the elections.

Grolschevik

Mary Hairy wrote: »

In presidential elections there is only one seat and the PR system is used.

Nope, the single-transferable vote is used - there's a difference.

Mary Hairy wrote: »

It can also be argued that 3 seater constituencies are less reflective of proportionality that 4 or 5 seater.

True.

Mary Hairy wrote: »

To be truly proportional the whole country would have one constituency. Even the distribution of the surplus in our PR system is not strictly proportional.

True.

Mary Hairy wrote: »

There is thus no strict requirement for proportionality.

This is what I was wondering about. Could and/or should Article 16.2.5 be interpreted as requiring this? It would mean that the various Electoral Acts were misinterpreting/misapplying the Constitutional requirement, of course...

Rookster

This whole debate will be irrelevant very soon as Cowen will be ousted and the new leader will probably go to the country next May/Jun.

Grolschevik

Rookster wrote: »

This whole debate will be irrelevant very soon as Cowen will be ousted and the new leader will probably go to the country next May/Jun.

No, it's a theoretical Constitutional question, which is why I posted it here rather than in Politics.





(As a test, I should post it in Politics and open a book on how many posts it takes to get to the "1916 Rising: heroes or terrorists" stage! )

Jo King

Grolschevik wrote: »

Nope, the single-transferable vote is used - there's a difference.

.

The version of PR used in the country is STV and that is the case whether there are 1,2,3,4 or 5 seats involved.

Jo King

Grolschevik wrote: »

This is what I was wondering about. Could and/or should Article 16.2.5 be interpreted as requiring this? It would mean that the various Electoral Acts were misinterpreting/misapplying the Constitutional requirement, of course...

The Constitution also requires 3,4 and 5 seat constituencies. Given that, true proportionality can never be achieved. The Courts are not going to re-write the constitution. Given the choice between respecting the requirement for true proportionality and abolishing the requirement for 3,4,5 seat constituencies and also requiring a general election every time a seat becomes vacant, the Courts will keep the status quo. The Courts are also likely to construe the requirement for PR as being the version of PR which was in use at the time the Constitution was enacted which was in itself not perfect.
The courts did intervene in the Donovan case because the constituencies in the West had fewer voters per seat than those in the east.
The courts accepted that it would not be practical to ensure that there were the same number of voters per seat in each constituency and simply set a tolerance level of variation of about 10,000.

Grolschevik

Jo King wrote: »

The version of PR used in the country is STV and that is the case whether there are 1,2,3,4 or 5 seats involved.

There is a lot of confusion about this. Our version of PR is called PR-STV (proportional representation by means of the single transferable vote), but STV and PR, conceptually and practically, are different things.

You can have STV without proportionality (it's just another form of preferential voting in that case) and you can have PR without STV. The labelling as PR of the system to elect the President in Article 12 is actually incorrect, in a technical political scientific sense...

Grolschevik

Jo King wrote: »

The Constitution also requires 3,4 and 5 seat constituencies. Given that, true proportionality can never be achieved.

The Courts are not going to re-write the constitution. Given the choice between respecting the requirement for true proportionality and abolishing the requirement for 3,4,5 seat constituencies and also requiring a general election every time a seat becomes vacant, the Courts will keep the status quo.

Ok. True proportionality can never be achieved, but it's not an all or nothing situation: think of it as being on a scale. I'm arguing that the current bye-election process isn't proportional enough: there may be means to improve this. And they wouldn't necessarily require a full general election.

Is that or is it not desirable? The Constitution requires constituencies of a certain character. But it also requires proportionality in the election of TDs. It's not really zero-sum.

Jo King

The same system of proportional representation used to elect the President is used in bye elections. The current system complies with the constitution.
The constitution is interpreted by judges not by political scientists. To make improvements the constitution would have to change.

Grolschevik

Jo King wrote: »

The same system of proportional representation used to elect the President is used in bye elections. The current system complies with the constitution.
The constitution is interpreted by judges not by political scientists. To make improvements the constitution would have to change.

You are missing the point. It's not "proportional representation" if there's only one seat. However, that one seat can be filled by means of the STV, but that does not make it PR.

The Constitution Review Group's 1996/97 report (although making no reference to the bye-election issue, as I recall) recommended that the phrase "proportional representation" be removed from Article 12.2.3.

It said (p29): "The term 'proportional representation' denotes the filling of a number of seats by different parties in proportion to the votes they receive. It cannot refer to the filling of a single seat."

If this is true of the Presidential election, it is equally true of a bye-election, in which case that bye-election is not conforming with any procedural proportionality requirement.

Perhaps judges should be taught political theory. But that's a different issue. And perhaps the Constitution should change.

Jo King

Grolschevik wrote: »

You are missing the point. It's not "proportional representation" if there's only one seat. However, that one seat can be filled by means of the STV, but that does not make it PR.

You are missing the point. It is what the constitution calls PR, whether rightly or wrongly.

Grolschevik

Jo King wrote: »

You are missing the point. It is what the constitution calls PR, whether rightly or wrongly.

Well, that's an interesting angle, if a bit "When I use a word," Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
On a more serious note, though, should we not care about ambiguous and/or misleading terms in the Constitution then?

Or does this not, in your opinion, constitute an ambiguous or misleading phrase?

[Edit: silly question!]