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Seanad Éireann debate -
Wednesday, 22 Mar 1972

Vol. 72 No. 12

Electoral (Amendment) Bill, 1971: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

This Bill is designed to do two things. Firstly it deals with the situation arising from the Supreme Court decision on the secrecy of the ballot and secondly it makes provision for assisting voters at the forthcoming referendum in relation to our accession to the European Economic Communities.

As Senators are aware, a declaration was sought from the courts that certain provisions of the law relating to the election of Members of Dáil Éireann were contrary to the provisions of Article 16 of the Constitution which provides that voting at Dáil elections shall be by secret ballot. The essence of the claim was that the practice of writing the elector's number on the counterfoil of his ballot paper taken in conjunction with the requirements that the ballot paper and counterfoil must bear the same serial number, that election documents must be retained for 12 months after an election and that ballot papers and counterfoils may be inspected on the order of the Dáil or the High Court made it possible after an election to trace the ballot paper used by an individual elector and ascertain how he voted and that this practice contravenes the constitutional provision in relation to secrecy. The Supreme Court ruled that the provision for marking the elector's number on the counterfoil of the ballot paper was contrary to Article 16 of the Constitution and the present Bill accordingly provides for the removal of this requirement from the law.

Although the matter was not adverted to by the courts, I considered it desirable to remove also the requirement that the form of receipt signed by a postal voter should indicate the serial number of the ballot paper received by him. It seemed to me that there was, in theory at least, a possibility of ascertaining, by reference to the form of receipt and the ballot paper, how an individual postal voter marked his ballot paper. In future, therefore, a postal voter will simply acknowledge receipt of a ballot paper without specifying its number. This change necessitates some minor consequential changes in the postal voting rules and these are also being made in this Bill.

The Constitution also provides that voting at Presidential and Seanad elections shall be by secret ballot. A procedure identical with the Dáil election procedure for entering the elector's number on the counterfoil of his ballot paper is contained in each of these codes. Although the constitutionality of the Presidential and Seanad electoral law was not questioned it is clearly necessary to make changes in these Acts corresponding to the changes proposed in the Dáil electoral law. It was necessary to propose a further change in the law relating to the election of Panel Members of the Seanad. The elector at an election of Panel Members is required to produce his voting papers to an authorised person—that is, Clerk or Assistant Clerk of the Dáil or Seanad, county registrar, city or county manager, county secretary or Garda superintendent— who witnesses the elector's signature on the declaration of identity and signs a certificate which is then attached to the envelope sent to the Seanad Returning Officer.

The purpose of this arrangement is to make it impossible for anybody other than the elector to whom the particular ballot papers were sent to vote by means of these ballot papers. This safeguard will be somewhat weakened by the fact that the declaration of identity and the ballot paper envelope will no longer show the serial number of the ballot papers. Subsection (6) (e) of the Bill seeks to remedy this by requiring the authorised person to destroy each outer envelope—that is, the envelope addressed to the elector—produced to him and thus ensure that an elector, having already voted by means of his own papers, cannot subsequently produce his own outer envelope and another elector's ballot papers to a second authorised person.

As Senators are aware, there is no specific provision in the Constitution requiring that referenda be conducted by secret ballot but I am sure they will agree that it is desirable that a vote at a referendum should enjoy the same protection of secrecy as a vote at a Dáil, Presidential or Seanad election, and that the practice of writing the elector's number on the counterfoil should be dropped in the case of the referendum also.

It will be seen that the Bill prescribes new forms of ballot papers for use at Dáil and Presidential elections and referenda. These new forms are identical with the forms at present prescribed except that the space for the insertion of the voter's number on the counterfoil has been removed.

While this Bill was before the Dáil, the Third Amendment of the Constitution Bill, 1971, which proposes to amend the Constitution in order to allow the State to become a member of the European Communities was passed by both Houses. The Dáil agreed that the scope of the present Bill should be widened to provide for assisting electors at the referendum on the Constitutional Amendment Bill and the Dáil accepted a Committee Stage amendment proposed by me for this purpose. The amendment appears at section 5 of the Bill now before the Seanad. It provides that a special polling card containing a statement relating to the proposal for amendment of the Constitution will be sent to each elector, including postal voters. The statement will also be displayed in and in the precincts of polling stations and presiding officers will be authorised to assist blind, incapacitated and illiterate voters by reading out this statement to them, where necessary, and asking them whether they wish to vote in favour of or against the proposal and then marking the ballot paper in accordance with the voter's answer.

These arrangements are identical with those made by the Referendum (Amendment) Act, 1968, in relation to the referenda on the Third and Fourth Amendment of the Constitution Bills, 1968. Similar arranagements had previously been made by the Rerefendum (Amendment) Act, 1959, in relation to the referendum held in that year. Under the law, the proposal which is the subject of the referendum must be stated on the ballot paper by citing by its Short Title the Bill containing the proposal passed by both Houses of the Oireachtas. The Short Title, of course, gives no real indication of what the proposal is about and, in the circumstances, I think the Seanad will agree that it is desirable that a statement relating to the proposal for amendment of the Constitution should be circulated for the information of voters, as was done in 1959 and 1968.

This Bill is one that will be welcomed by all Members of this House. It has been introduced so as to comply with the recent ruling in the constitutional case in the Supreme Court. Its effect mainly will be to stop the practice that obtained in all elections which have been held in this country so far whereby a number is entered on a ballot paper and another number is recorded on a counterfoil. The fear has been expressed many times in the past that because of the fact that the voter's number was also entered on the counterfoil it would be technically possible to trace in what way an elector had cast his vote.

The effect of this Bill will almost one hundred per cent eliminate this doubt and this fear which existed. Some of us have stood for election once or twice and the practicality of the thing is that suggestions were always made, or could always be made, that a person's voting pattern could be traced through the system. Consequently, I think the House ought to welcome the decision of the Supreme Court and to congratulate the private individuals who introduced that action so as to have this matter clarified.

Although I do not think it is mentioned in the Minister's brief, I understand that other amendments are to be introduced by way of a new order or regulation in connection with the holding of local authority elections. I think it would be as well if that point were clarified. Concern has been expressed, I think, that the serial number should still be left on the ballot paper and it has been suggested that there is in fact no need to have a number recorded on the ballot paper. I think the Minister's answer to that has been that it is necessary to have each ballot paper numbered so as to prevent anybody from placing illegal papers in the ballot box. If there was a query after the count, he suggested that it would be impossible to distinguish between the illegal paper and the genuine one if the genuine papers had not a number on them.

However, I should like to suggest to the House and to the Minister that the stamp which is embossed or perforated on the ballot paper would be a sure method of verifying which was an authentic paper and which was not. In this day and age it is very easy to get a document printed virtually instantly and a copy of a paper could be made within an hour of the opening of the polling booths. It certainly would not be as easy as that to have an embossed stamp and die made. I suggest that the stamp itself should be sufficient without using any serial numbers whatsoever. It was gone into in great detail in the other House as to whether the stamp should emboss or perforate. The suggestion was rightly made that very often the embossing procedure is bad and the results faint and that it slows up the count to a considerable extent while the doubtful votes are being checked. May I suggest to the Minister that a system might be employed whereby the stamp would not only emboss but would also ink the paper? This ought to make it very evident at first glance if the paper was a genuine one.

Perhaps one of the most important changes which this Bill brings about is to eliminate to some extent the fear which has always existed in the minds of postal voters that their votes were readily traceable because of the strange method which has obtained whereby their votes had to be placed in an outer envelope and a number placed on that envelope. I understand that the effect of this Bill will be that when postal votes are now cast they will be dropped unopened and unchecked and uncounted into a ballot box which will subsequently be counted in conjunction with the main count. The Minister has stated that he has issued an instruction that postal votes should be counted face down when they are being opened. This should maintain the secrecy of the vote.

There seems to be some confusion in this regard. If I have read his remarks correctly, the Minister stated that postal votes should be counted face down and that all other votes should be counted face up. There seems to be a contradiction in this. Those who have been at election counts know that, while votes may be counted face upwards, often when the box is opened and the votes are being unfolded and checked in bundles of 50 or 100, they are usually counted face downwards. It might be better if there was a uniformity of approach to this.

The suggestion has been made that in small polling stations, where serial numbers will still be embossed on the ballot papers, it would subsequently be possible to check in which way a person had voted. A personation agent who had entered against his register the sequence in which the local people had voted and subsequently checked the sequence of numbers on the backs of the papers as they were being opened and checked and then checked the votes on the fronts of the papers as they were being counted, could find out how a person voted. This, however, would be virtually impossible at most counts, but the Minister can deal with it when replying.

It is incomprehensible that with all the resources of Government and with all the printing firms, the size of the number which is stamped on the back of the ballot papers cannot be made smaller than 14-point type. Fourteen-point type is larger than is used in the Dáil or Seanad Official Reports. It is larger than is used in the body of the text of any newspaper. It is a larger type than would be used in the text of a hand circular. It should not be technically impossible to have at least a reduction in the size of the print of the numbers, if the elimination of those numbers is found to be undesirable.

I understand the Minister has in mind the introduction at some future date of a comprehensive review and reform of the whole electoral system. May I take this opportunity of commenting that it seems again incomprehensible that the count which takes place after an election should take so long and that it should all be carried out by hand? In certain areas the returning officers are far less helpful to the candidates and their agents than they are in other areas. There is a great lack of uniformity in the approach towards the small details of staging an election and towards the very important details, both small and large, of conducting the count.

The Minister should circulate to all returning officers a standard set of rules and procedures and copies of the relevant Acts and perhaps an explanatory memorandum as to what they entail, with also a directive that copies of that circular should be made available to the election agent of each candidate. There is nothing worse than having election agents in conflict for the duration of the count with the returning officer. At such times everyone suffers enough tension without having the further annoyance of different people interpreting the election machinery rules differently. This could be clarified and the clarification made available to the election agents on behalf of the candidates.

The introduction of section 5, even at a late stage in the Dáil, was a good thing. There is a definite difficulty relating to the holding of referenda. The people may not be clear as to what they are actually voting about and whether by voting "yes" they are really casting their votes in the way they want to. I welcome the Bill.

I thank the Seanad for the reception given to the Bill. I should like to clarify the position relating to local authorities. I referred to this when dealing with the Bill in the Dáil. The law governing the holding of local elections can be changed by way of regulations and this will be done before the next local elections are held. In this way the voter's number shall not appear on the counterfoil of ballot papers at local elections.

The Senator referred to the practice of deciding whether a vote was valid or not by way of the stamp. A ballot paper could be in dispute because of the mark itself and this has happened in many cases where the question of whether the paper had been officially stamped with the official embossing required was in some doubt. In such a case it would be impossible to identify the exact vote afterwards unless the serial number was retained on the back of the ballot paper.

The Senator mentioned the use of some ink on the mark as well as the embossing. This may be a good suggestion and will be considered for future legislation.

On the question of postal votes, it is true that with these changes it will not be possible to discover the trend of voting when postal votes are being opened. This has been an undesirable aspect of postal voting and where only specific categories of persons are entitled to postal votes I have felt it was unfair that when their votes were being opened it could be seen which way they had voted. This interfered with the secrecy of the ballot and the whole principle of secrecy in voting. With the removal of the voter's number on the register of electors from the counterfoil and the necessity to check the ballot paper against the number on the declaration of identity, it will not now be necessary for the returning officer to unfold the ballot papers when opening the ballot box containing postal votes. This is a very desirable thing.

Afterwards will the votes be counted face downwards?

No. The Senator is a bit confused about the regulations governing the counting of votes. The instructions are that ballot papers shall be counted face upwards. The Senator seems to imply that this applies only in the case of postal votes. It applies in the case of all ballot papers that the counting of them shall be done face upwards. The numbers are not visible to persons watching the count. In that way the question of the number indicating the manner in which a person voted does not arise.

Is the requirement that the checking when they are being sorted be done face downwards on postal votes?

No. The instructions are quite clear on this.

I am not talking about the counting but the opening.

The opening. There is no requirement about the opening but they will be counted face upwards.

I understood the Minister to say that postal votes would be counted face downwards. If not, the procedure that is now to be adopted, whereby the votes unopened will be dropped into the box and the box sent in the ordinary post and the votes counted in the ordinary way, will still mean that when they are taken out everybody will know that this is the postal vote box. Those votes, if counted face upwards, will still indicate what way the postal voters are voting.

Acting Chairman

These are points which could more properly be raised on the next Stage.

The returning officer, in making arrangements for the counting of the votes, need not necessarily open the postal votes. Before counting they must be mixed in with the other votes. This is done in many places. You still would not be able to discover the trend of voting among postal voters.

The question of 14-point type was raised in the Dáil discussions. I explained quite clearly that in the printing of ballot papers for the referendum, which it would be reasonable to assume will be the next election that will be held and which will necessitate the printing of the next lot of ballot papers quite soon, a practical difficulty has arisen in that arrangements have been made with a printer in Dublin already, although a firm contract has not been given for the work. This cannot be done until an order is signed. At the same time I have made inquiries and the information available to me is that there is not any printer who would be in a position to print 2,000,000 ballot papers in smaller type in the required time.

There is no printer with a numbering machine smaller than 14-point type. It is not that big. It is about a fifth of an inch, so I do not think we should let our imagination run away with us in relation to the size of the number. There was a lengthy discussion on this subject in the Dáil. I accept the fact that the size is not small. I indicated that I would have a look at this matter and, if necessary, see what arrangements could be made to ensure that smaller numberings were used at future elections, but I could not tie my hands with the holding of a referendum so imminent.

About the size of the lettering on the front cover of the Parliamentary Debates.

The Senator may have some knowledge of printing but the point system is a way of indicating the size of certain print. There are also about 5,000 type faces. With this type variety you can get a different impression from different size figures. The thickness of the lines in the lettering has a lot to do with their legibility. I do not wish to go too deeply into this question. For the time being I cannot do anything about getting a smaller type than 14-point, but I am anxious to try to reduce the size of these numbers for future elections.

The Senator complained about the length of time it takes to count votes. The simple explanation is that we are operating under the proportional representation system which has its own complications and necessitates a careful and slow system of counting. There is not much we can do to speed it up.

I take the Senator's point in relation to publishing for the information of election agents, candidates and persons working at elections, a booklet or document setting out in some detail the laws and regulations governing the holding of these elections. This would be very desirable and I will look into that point.

Question put and agreed to.

Acting Chairman

Next stage?

I would ask the House to take the remaining Stages this evening because I understand it is necessary to have this Bill through before the Easter recess. If we do not take the remaining Stages today it would be necessary for the Seanad to sit next week.

Does the Senator fear a general election at Easter?

The Bill does not affect a general election one way or the other.

Up to what time will the Minister receive amendments?

Up to 7.15 p.m.

Agreed to take remaining Stages today.

Business suspended at 6.10 p.m. and resumed at 7.30 p.m.