By Michael Gallagher
Leaving aside the broader issue of electoral reform (I’ve put some thoughts on this here), the question of how to fill casual vacancies has been discussed. At present, by-elections are used to fill such vacancies, and this has been criticised as an anomalous way of filling vacancies arising under a PR system. There are indeed anomalies, but would any other method mark an improvement?
In both Malta and Tasmania the ‘countback’ method is employed: the retiring or deceased MP’s ballot papers from the last general election are examined, and a replacement candidate is elected from these papers using the alternative vote, so that the supporters of the departed candidate, and not all voters, get to decide by whom he or she should be replaced. (What happens if in the interim that candidate, defeated in the general election, has switched party allegiance or has, say, been revealed as having involvement in some dubious financial dealings, is unclear.) Some people have advocated this for Ireland.
Unfortunately, as far as I can see that method just wouldn’t work here. The reason is that in many cases parties will not have run any more candidates than they won seats, and so the countback method would end up ‘electing’ someone of a different party. For example, after Tony Gregory died in January 2009, while we can’t be certain who would have been elected from the 6,928 votes in his quota, we do know that it would not have been anyone from his own organisation, because he did not have a running mate in Dublin Central in 2007. The contest would have been among the 9 defeated candidates in the constituency, even though, quite possibly, none of them would have greatly enthused Gregory’s voters. The by-election held in June of that year did, though, result in the election of Maureen O’Sullivan, standing as the candidate of Tony Gregory’s organisation.
Most Labour, and several Fine Gael, TDs elected in 2007 had no running mates, and quite a few FF TDs had no unsuccessful running mates – the existence of such unsuccessful running mates being essential if the seat is to remain within the political tendency of the departing TD. In this respect Ireland differs from Malta, where party allegiances among voters are very strong and where the parties nominate many more candidates than they win seats in each constituency, and (as I understand it) also from Tasmania. In both of those contexts parties are sure to have other candidates available to take part in the countback. In Ireland, though, the countback method would produce anomalies that no-one would advocate.
For example, in Dublin SW, if any of the 4 TDs (2 FF, 1 FG and 1 Labour) elected in 2007 were to resign, the contenders for their seat under the countback method would be a SF candidate, a Green, an independent, and a Socialist Party candidate. The last three of those attracted precisely 3,560 first preferences at the election, less than half a quota between them. The argument that one of those four candidates, and only one of those four candidates, should be entitled to any seat that falls vacant is difficult to sustain. Countback really does not seem to be a runner in Ireland.
The only feasible alternative to by-elections here is the ‘list of substitutes’ method employed at European Parliament elections. That has both advantages and disadvantages compared with by-elections, as outlined by Gary Murphy (DCU) in his evidence to the Committee on the Constitution on 10 February 2010.
It may be that, to paraphrase Winston Churchill on democracy, by-elections are the worst possible method of filling casual vacancies in this country, with the exception of all the others.
Irish Politics Forum 
@ Michael, I can see the drawbacks of the ‘countback’ approach, and Gary Murphy’s account indicates that the ‘substitute’ approach is not perfect (although, it strikes me that its merits in terms of speed, simplicity, and maintenance of the national-level outcome outweigh its potential pitfalls).
Assuming that we keep the by-election system, what do you think of a mandated maximum time period (I’ve seen suggestions ranging from 90 days to 6 months) within which a by-election must be held after a seat has been vacated? The Constitution Review Group recommended 90 days in its report and I recently heard John Gormley stating that this was a sensible idea in a radio interview.
Michael. Surely the very beauty of the count-back method would be that it would force the parties to run more candidates than they’re accustomed to at present, for exactly the reason you say. This would mean they now face trade-off pressures: run too many candidates and they risk diluting their intra-party transfers; run too few and they risk losing the seat in the event of needing a replacement. Whatever their strategic calculations, the ‘N+1’ rule of thumb would have to be broken, potentially helping to reduce the constituency baliwick carve-up that currently dominates.
The issue of what to do re-countback when the departing TD has no running mate should not be an issue.
In Tasmania, the parliamentary leader of the party of the departing MP has the right to request a by-election if there are no available candidates from his/her party via the countback method.
To apply this to the Dublin SW example, should any of the FF, FG or Lab TDs leave their post, their respective party leaders would have the right to request a by-election instead of the countback.
To counter this, parties may well then run more candidates, as David Farrell has suggested. This is no bad thing as it will surely increase the choice on offer to voters. However, as you correctly indicate, the parties may well be reluctant to run more candidates than is the case in either Tasmania or Malta because of the higher rates of transfer solidarity in the latter two countries.
If the biggest problem with by-elections is their lack of proportionality then simply allowing the parliamentary leader of the party to request a by-election appears to defeat the purpose of the reform. In this case count back or substitution appear to be the answer. However, Gary Murphy raised other criteria including the testing of public opinion during a Dáil term and the possibility of national consequences,. He points out the election of George Lee and Deputy Maureen O’Sullivan last summer were useful tests of opinion, while the 1994 change of government would not have happened under a system of replacement. If these criteria are the priority then maintaining PR_STV for by-elections is the answer. We need to identify which problem is being addressed by the possibility of by-election reform before we can identify the appropriate solution.
But why would any party take the risk of a by-election (particularly Fianna Fáil), when running more candidates would guarantee them the retention of the seat.
By my calculations, since 1945 there have been 44 by-elections caused by a vacating FF TD. If there is a by-election in Donegal South-West for Pat the Cope Gallagher, it will be the 45th.
Fianna Fáil ‘lost’ their seat at 16 of these by-elections. Had the countback been employed, on 12 of these occasions there was a remaining unelected Fianna Fáil candidate. In other words, FF would have retained 75% of the seats they lost at by-elections had the countback been employed.
From a rational point of view, countback is clearly the way to go for Fianna Fáil. For one, it would never have lost 2 by-elections in June 1994 that helped give the rainbow partners enough seats later that year to form a government. For another, George Lee would not have been a TD!
Concerning the point that by-elections are useful tests of opinion, are they really? Is the mood of Dublin South and Dublin Central really indicative of the mood of the country? Any opinion poll confined to these constituencies would be shot to pieces for its bias.
The crucial point, however, has to be that if we have PR-STV, we cannot have by-elections. They are not proportional.
On a sidepoint, is there any definitive argument on its spelling: by- or bye-elections?
@ Liam ‘For another, George Lee would not have been a TD!’
Nor would Brian Cowen, Brian Lenihan or Enda Kenny have been elected when they were. Given that these people later reached the top of the political class, would we really want to cut off a route by which younger people get elected (albeit usually relations of deceased members)?
@ Liam ‘The crucial point, however, has to be that if we have PR-STV, we cannot have by-elections. They are not proportional.’
Measuring proportionality for STV is problematic because we don’t take into account lower preferences, which are as just as much an expression of the voter’s opinion as the first preference. AV (STV in single seat constituencies) cannot be assessed for proportionality unless we take into account the whole vote. Unfortunately we rarely have all that information as only some preferences are revealed through eliminations.
In any case, Jane is right, what’s the problem here that changing the mechanism we use to fill casual vacancies is going to solve?
The problems are:
1. We need to remedy the situation whereby the party of the departing TD can indefinitely delay choosing his/her replacement.
2. Since the people have already spoken (i.e. at the last general election), it seems a rather time-consuming and expensive means of picking a replacement.
3. Is it really ideal to see candidates being elected on the basis of the popularity of a dead TD? Surely it would be better to see Brian Cowen, Brian Lenihan and Enda Kenny all elected on their own merits, rather than that of their late fathers?
4. They are an anachronistic means of replacing TDs. While suitable in single-seat constituencies, their practice in Ireland means that some TDs are elected under different electoral systems than others.
5. Since very few have advocated the use of the alternative vote (i.e. as practiced at by-elections) for general elections, why do we persist with it at by-elections?
6. While we can’t precisely measure the proportionality of AV, that is irrelevant. We know it’s far from proportional unless one candidate wins close to 100% of the vote.
7. Do we really want the death of a party member to threaten the instability of governments? Minority governments teetering on the edge of collapse are hardly ideal. We know that most governments rarely win a by-election. It does seem unfair therefore for governments to be punished just because one of their members dies. While we can blame them for a lot of things, I don’t think this can be included.
If a government falls because it loses support within the parliament, fine, that’s parliamentary democracy.
If it falls because one of its members dies, is that the same thing?
1. Anyone can put down a motion to move the writ, not just the party of the departed TD (though this was the tradition), but it’s easy enough to put in the Dáil SOs the requirement that it would happen within 90 days of the seat becoming vacant.
2. Maybe the people would speak differently after a couple of years – why deny them the right to choose their TD? Are you not denying the right of those whose votes elected the now departed TD by allowing others’ votes choose his replacement. Surely it would be fairer wither to allow his/ her party choose the successor or have a by-election?
3. No, but is it ideal that candidates are elected on the basis that they won All-Ireland medals? Should we second guess the wisdom of the voters?
4. Anachronistic? Why? Because we inherited it from the British? That’s just a ‘Boo’-word. Arguably people elected in three seat constituencies are elected under different systems to those in five seat constituencies, so should we not standardise that?
5. The British could have it soon. Our own system is quite rare, so should we abandon it in favour of something more people use?
6. So it cannot be proportional – so what? Nor are our presidential elections (when we get them) yet they are formally designated PR-STV. AV might be one of the fairer ways of filling single positions because it takes into account the opinions of voters beyond just their first choice.
7. Maybe we don’t want deaths to undermine government stability, and so perhaps one could make an exception for vacancies caused by deaths. But if Pat the Cope or George Lee abandon their seats, why not allow the voters have a say as to who their successors are. If a government is going to fall because a member dies, the voters in the bye-election will be aware of this and can factor it in to their choice. Maybe the people want it to fall. You can argue that it gives too much power to the voters in just a few constituency, but the same argument can be made of Green party voters now or PD voters in the past.
I never thought by-elections could generate so much comment!
Re-point 2, I’m confused. By-elections do deny the rights of those whose votes elected the now departed TD by allowing others’ votes choose his replacement. That’s why I prefer countback.
The problem with by-elections is that you’re giving some people two votes. If their preferred candidate was already elected and is still a TD, they’re getting a chance to pick another TD, which may then deny the rights of those who supported the departing TD.
While also a remote possibility, by-elections also offer large parties an opportunity to win even more seats than under PR-STV. For example, under normal circumstances, before the recession, we might have expected Fianna Fáil to hold Seamus Brennan’s seat in a by-election. This would have left them with 60% of seats from 41% of votes (in 2007).
Similarly, if one of the 2 Fianna Fáil TDs in Mayo now resigned, we might well expect Fine Gael to win the by-election, thus having 80% of seats from 54% of the 2007 vote.
Re-3: I don’t really see the link, but at least they won the medals, rather than their parents. However, while we still elect dynasties, how many All-Ireland medallists are now elected? Since the late John Wilson, there haven’t been too many. Yes to Jimmy Deenihan, but Graham Geraghty, double All-Ireland medallist and captain, fairly bombed in 2007.
Re-4: anachronistic because it’s outdated. Nothing to do with our neighbours. Rather, how many countries with PR systems use by-elections to select replacements?
Re-5 & 6: if AV is that good, why has it not been considered as an option for electoral reform of the lower house?
We can’t seriously think that AV is being considered in Britain because that’s what either the parties or voters want.
Re-7: different rules for TDs who resign and die? Would there be an incentive then for some TDs to resign before they die?
While we can debate the merits or demerits of using by-elections and given my evidence to the Committee on the Constitution I am not convinced that any alternative methods are likely to be better, the real reform question should be addressing the scandalous delay in replacing members in the current system. As it stands there is still no likelihood of the seat in Donegal South West being filled any time soon. While the fear of losing a seat at a by-election gives governments of all hues an incentive to leave a seat vacant for a significantly long time, this essentially disenfranchises the electorate in a PR system and seems to me to be unacceptable practice, notwithstanding Liam Weeks’ point asking whether we really want the death of a party member to threaten the stability of governments. In that context a simple worthwhile reform would be as Eoin O’Malley points out to implement a standing order that the writ would be moved within 90 days of the seat becoming vacant. I would prefer 60 myself. We should not let questions of government stability interfere with the democractic right of the people of any constituency having their required representation in the Dail.
Why have by-elections at all?
Why not just take the last person to be eliminated during the count in the particular constituency during the previous general election?
The advantages are
1) It retains the link with the expressed preferences of the voters in that particular constituency;
2) It does away will the power of incumbeents to set the timing of by-elections;
3) Similarly, it does give any power to party officials to nominate substitutes, as the system of alternates used in electing MEPs does;
4) It lessens the possibilities of silly government decisions being made in reposne to by-elections. How smart is it to build two non-interconnected light rails lines in our Capital city? This bizarre decision arose from the Dublin North by election (early 1998) arising from the resignation of Ray
Burke. Similarly, the equally bizarre decision to extent DART to Greystones (one half of the catchment area is the sea – the other cliff-bound) arose from a by election in Wicklow during the mid 1990s.
5) As Government tend to lose by-elections, there is no more threat to the stability of government in my proposed system than the existing system.
For those intereested, I proposed this in my 1996 submission to the All-Party Oireachtas Committee on the Constitution, as one of the checks and balances needed on the acqusition, exercise, control and change of power in our society.
Correction.
Popint three about should read
3) Similarly, it does not give any power to party officials to nominate substitutes, as the system of alternates used in electing MEPs does;
On the length of time for which a seat can lie vacant: yes, it’s disturbing to hear seemingly informed speculation to the effect that the three seats currently vacant (Donegal SW, Dublin S, Waterford) might simply be left vacant until the next general election, which could be over 2 years away. As Gary M says, this amounts to depriving the people of those constituencies of the same level of representation as people elsewhere have. Fear of its Dáil position being decisively weakened is only one factor in the government’s behaviour; it’s worth recalling that (leaving the second world war cases aside) it was the government with the largest Dáil majority ever, viz the FF–Labour government of 1993–94, that left seats unfilled for the longest time ever, seventeen months. One reason offered then was that the government was very busy and did not need the ‘distraction’ of by-elections, but there is in fact no constitutional requirement that when a by-election takes place the entire cabinet has to decamp to the constituency in question for several weeks. Campaigning in by-elections is not what we pay ministers for!
A 90-day requirement for filling vacant seats seems reasonable. As Matt W says, such a recommendation was made by the Constitution Review Group in its 1996 Report (p. 49). While there is hardly going to be a referendum on this as a single issue, it could be part of a package of political reform constitutional amendments should one be devised. Short of this, the matter could certainly be regulated by legislation, and perhaps the opposition parties might make a commitment to such a measure, to be enacted early in their next term of government before the idea of having the power to postpone by-elections indefinitely becomes too tempting.
As to how, as opposed to when, to fill casual vacancies, one point to note is that the constitution says little about this, and does not explicitly prescribe by-elections. Article 16.7 says merely that the matter shall be regulated by law, subject to the other provisions of Article 16. Thus it might seem that the Oireachtas could change the law to replace by-elections by either the countback method or the list of substitutes method. The main barrier to this, as far as I can see, is Article 16.2.5, which states that ‘The members shall be elected on the system of proportional representation by means of the single transferable vote’. It is possible, though I’d guess unlikely, that the election of replacement deputies via the countback method or the substitutes’ list could be deemed compatible with this, in that the people might be seen to have conferred some kind of endorsement amounting to ‘election’ on the replacement deputy at the general election. Hence it may be that either of these could be introduced simply with a change in the law, without requiring constitutional change.
(Any challenge to by-elections on the ground that they do not amount to election by ‘proportional representation’ is unlikely to succeed, given that the election of the President is described in the same terms (Article 12.2.3). The state would presumably argue that the wording in the constitution was understood in 1937 to include a situation where only one candidate is to be elected, and that the drafters when they wrote the text, and the people when they endorsed it, were simply unaware that proportional representation, properly understood, necessarily entails the election of more than one candidate. If by-elections were deemed incompatible with the constitution because they are not held under PR then every presidential election to date would have to be deemed invalid.)
On countback, it makes obvious sense in Malta, where party identification is very strong. In a constituency where one party is in a majority and an MP of the minority party resigns or dies, the majority party would snap up the seat in any by-election. Another consequence of very high party ID in Malta is that running a multitude of candidates is a perfectly safe strategy for the parties, as they can be confident that virtually all vote transfers will remain within the party fold.
Not so in Ireland, where party ID is low and declining and where for many voters the candidate seems to count for as much as the party in determining their vote (Marsh et al, The Irish Voter, ch 8). Parties can miss out on a seat by nominating too many candidates. If countback was in operation, then as David F says the parties would have to nominate additional candidates, just in case. Maybe in the case of a larger party already running 3 or 4 candidates, this would be unproblematic, but for smaller parties (Labour in recent elections, Greens, SF, Independents) with their sights set on just 1 seat it would be an unpleasant dilemma. Run one candidate and if you’re lucky you will win a seat but will see it go to another party if your TD doesn’t last the full term; run two to avoid this risk and you may miss out on a seat in the first place (cf Labour’s travails in 1969 when over-optimistic central bodies insisted that all incumbents take a running mate). If the second candidate is a credible contender then the dilution of what would otherwise be a campaign focused around the main standard-bearer means that the seat could be forfeit; if the second candidate is a straw man or straw woman then, by definition, they are not the person the party sees as the second best potential candidate or would choose to run in a by-election should one arise.
In effect, it will be the weaker or weakest of the party’s general election candidates, the proverbial ‘sweeper’, into whose lap the seat automatically falls. At by-elections the parties get to choose afresh, and good candidates can emerge that way. As well as the ones mentioned by Eoin OM, there have been past party leaders elected through by-elections (Seán Lemass, William Norton, Brendan Corish, Seán MacBride, Des O’Malley), not to mention a number of others who went on to be ministers. None of these would have been elected by countback as they were not candidates in the previous general election.
Giving the leader of the party the right to decide whether there is a by-election in the circumstances where his/her party didn’t nominate any ‘spare’ candidates, as Liam W mentions for Tasmania, would avoid this dilemma – though how would this work in the case of an Independent TD, eg who would have had the power to call a by-election following the death of Tony Gregory? And this still does not get around the problem that any candidate elected via countback is by definition someone who was explicitly, and perhaps emphatically, rejected by the voters at the general election, not to mention the possibility that something negative is known about them now that wasn’t known at the time of the general election, eg that they were an Ansbacher account holder or whatever. The same would apply to the idea to give the seat to the general election runner-up.
At present a big problem with by-elections is that under current regulations the seat can be left unfilled indefinitely. But, as we’ve discussed, this can be put right by introducing a time limit for filling the vacancy; it doesn’t require the abolition of by-elections themselves.
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