The Electoral Act 1992 is an ordinary act of the Oireachtas which can be amended by a subsequent act of the Oireachtas; the Constitution can be amended by act of the Oireachtas but subject to approval of the electorate at a referendum. Ministerial orders are secondary legislation which the Oireachtas need not approve. It would be possible to give nonresidents the vote in both Dáil and Presidential elections by amending the 1992 act, but limiting the nonresident franchise to Presidential elections would require a constitutional amendment.
Political background
The Irish diaspora is large and the question of voting rights for emigrants and other expatriates has arisen continually since the 1980s. The Oireachtas committee on the constitution considered the matter in 2002; it recommended no extension of the franchise, but that among the senators nominated by the Taoiseach should be "a person or persons with an awareness of emigrant issues".
The Constitutional Convention established in 2012 was directed to report on several issues, including "giving citizens resident outside the State the right to vote in Presidential elections at Irish embassies, or otherwise". It considered the matter at its plenary meeting on 28–29 September 2013 and recommended allowing expatriate citizens to vote. It made some more detailed discussions, voting as follows:
Should citizens resident outside the State have the right to vote in Presidential elections? Yes 78–21 No
Should citizens resident in Northern Ireland have the right to vote in Presidential elections? Yes 73–20 No
Restrictions:
Restriction
Percentage
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-
-
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All Irish citizens resident outside the island of Ireland
Just citizens who have lived in Republic of Ireland as adults within the last...
Government response
Although the Fine Gael–Labour coalition government was supposed to give an official response in the Dáil within four months of receiving the Convention's report, it was not until January 2016 that Ann Phelan said it was "committed to undertaking... analysis" of the "complex and inter-related issues" involved in the recommendation. It had already responded in March 2015 to a European Commission communication on "the consequences of disenfranchisement of Union citizens exercising their right to free movement", saying "policy, legal and practical issues" on diaspora voting should be considered by the Minister for the Environment, Community and Local Government, the Minister for Foreign Affairs and Trade and the Minister of State with responsibility for diaspora affairs; in October 2015, Paudie Coffey said this work had begun. In 2017 the government formed after the 2016 election accepted the Convention's 2013 recommendation, published a position paper listing seven options for eligibility criteria and associated implementation measures, and promised a constitutional referendum on whichever option it would select, to be held in May 2019 alongside the local elections. The seven options were:
All citizens resident outside the State;
All citizens on the island of Ireland, and all citizens outside the island of Ireland for a period of time who have lived in the State;
All citizens on the island of Ireland, and all citizens who have left the island in the previous 15 or 20 years;
All citizens on the island of Ireland, and all citizens resident outside the outside the island of Ireland who hold a valid Irish passport;
All citizens resident outside the State who were previously registered to vote in the State;
Citizens resident outside the State who were born on the island of Ireland; or
All citizens on the island and all citizens resident outside the island of Ireland who were born on the island or who have lived on the island for at least one year.
2019 bill
In February 2019, the government decided that, due to the urgency of dealing with Brexit, the referendum would be postponed until October; it also agreed that the proposal would be "an extension of the franchise to all citizens resident outside the State, including citizens resident in Northern Ireland". The text of the bill was agreed by the cabinet on 11 June, and the Thirty-ninth Amendment of the Constitution Bill 2019 was introduced in the Dáil by the Minister for Foreign Affairs and Trade Simon Coveney on 16 September 2019. The bill proposed to amend the constitution in three places:
in Article 12.3.2º, the qualification for voting in Presidential elections would change
* from "Every citizen who has the right to vote at an election for members of Dáil Éireann"
* to "All citizens without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to elections for the office of President"
in Article 12.3.3º, the window for organising Presidential elections to would be increased from 60 to 90 days, to allow for the longer time to process ballots from abroad.
a transitory Article 12A would be inserted to delay the effect of the Article 12.3 changes until 1 January 2025. This gives enough time to amend the Electoral Act 1992 to "regulate the detail and practical implementation of an extended franchise". Incumbent Michael D. Higgins' seven-year term expires on 10 November 2025, after the Article 12A cutoff date. Conversely, the new nonresident franchise would not apply to an early election for a vacancy caused by the President's death, resignation or removal from office.
