Vol. 26 No. 3
I move:—
In page 3, Section 6 (1), line 32, to delete the word "send" and substitute therefor the word "deliver."
This meets a point that was made by Deputy Lemass on Committee Stage, and is advisable in order that actual delivery may take place by the 16th.
I move:—
In page 5, Section 10 (2) (e), line 44, to delete the word "voters,"
so that it will read:
"on which anything except the number on the back is written or marked by which the voter can be identified."
That refers to sub-section 3 of Section 9, which says: "The ballot papers shall be in the prescribed form and each ballot paper shall have a number printed on the back." That number printed on the back will be a consecutive series not beginning with one, but selected by the returning officer himself for the purpose of numbering the ballot papers and counterfoils.
The Minister's amendment improves the Bill from my point of view, but it all depends whether this is going to be taken along with the amendment to the Schedule, with reference to the voter's number on the and counterfoils.
With reference to the subsequent amendment in the name of Deputy Lemass to the effect that in page 8, lines 43-44, First Schedule, Rule 4, to remove the words "the elector's said number shall be marked on the counterfoil of the ballot paper," as I explained before, those on the electoral roll get a number and it is proposed that that number be transferred to the counterfoil of the ballot paper. The counterfoil of the ballot paper is the only place where the elector's number on the electoral roll will appear. After the issue of the ballot papers the electoral roll and the counterfoils are sealed up. The counterfoils would only be produced subsequently before a court in case of an appeal. It was argued that in the case of a man claiming that he did not receive a ballot paper when the case came before the court later that the presence of the identity form ought to be sufficient proof that the form had been issued, without referring to the counterfoil or the elector's number on the back of it. But it might so happen that a person having received an identity form and a ballot paper might return the ballot paper alone to the returning officer, omitting to return the identity form. In such a case the ballot paper would be marked as rejected, and in a case like that coming on on appeal before a court, the only way to establish the fact that the ballot paper and the identity form had been sent out to the man claiming that it had not, would be by reference to the number on the counterfoil, so that the transfer of the number to the counterfoil is necessary in order to cover that case. It has been explained before that there is no other means of relating the electoral roll to any particular ballot paper, so that the question of the secrecy of the ballot is not affected in the slightest degree by the elector's roll number on the counterfoil.
The Minister's point appears to be that in the event of an election petition, arising out of the fact that some voter claimed that he did not receive a ballot paper, this procedure is necessary. I do not think the validity of the election could be questioned on the ground that the voter did not receive a ballot paper. Therefore, that case could not possibly arise. You have made provision already in the Bill by which a voter who does not receive a ballot paper can get a duplicate paper.
Yes.
And if the voter goes to the trouble of getting a duplicate paper he cannot question the validity of the election afterwards. I mean that an election is not invalidated because a particular voter did not get an opportunity of voting. If that should be the case certainly both university elections on the last occasion would be invalid.
I take it that if a university elector, with apparently sufficient grounds, wanted to upset a university election, for the reason that he did not get an opportunity of voting, and if he was prepared to pay the expenses of going ahead with an appeal, there might very well be grounds for granting an election petition.
I can state that I have received competent legal opinion that he has no grounds, because I contemplated it.
Alternatively, if any disqualification arose in the case of a person who had a vote it would be necessary to be able to identify the voter. The question that concerns us is how it is possible to have that identification made without at the same time making the identification easy for people who are not concerned; in other words, to disappoint the curious. I do not know that there is any way other than this mark on the counterfoil. But it is necessary that some means should be provided by which a vote to which exception might be taken and, with regard to which the courts might uphold the objection, could be separated from the remainder in order to get at the real decision of the electorate. I do not know whether the Deputy remembers a petition many years ago in connection with the election of a guardian down the country. Quite a large number of votes were examined, exception was taken to certain of the votes on various grounds, and the eliminations went on day after day, so that A would be winning to-day and B would be winning to-morrow, until the ultimate elimination of all the votes in respect of which objection had been taken had been reached, when the result was that there was a single vote in favour of one of the candidates.
I am not as familiar as I would like to be with the law in connection with election petitions, and I am prepared to take the President's word that such a practice is necessary, but honestly I do not think that it is. I think you could satisfy any court as to whether a particular voter recorded his vote or not by means of the declaration of identity form.
Section 11 (4) says: "Every person entitled to vote at a Seanad election shall be entitled to vote at that election in the following and no other manner, that is to say, by marking and returning by registered or ordinary post to the Seanad returning officer a ballot paper sent to him under this section." If in opening the envelope that comes back the Seanad returning officer gets an identity form and an envelope, that the number on this identity form does not correspond with the number on the envelope enclosing the ballot paper, that identity form and that ballot paper have to be marked "rejected" and will not count. In coming before a court you would have actually present all the papers, including the identity form corresponding to the ballot paper, so that if two people transposed their envelopes or ballot papers and send them in you would have the identity forms corresponding with the ballot papers, but not having been received in the way which would make them entitled to be counted it might have to be proved to the judge that the proper identity paper and the proper ballot paper were sent out to the one person. The only way of proving that is by going back to the counterfoil, which was marked before the papers went out, in the presence of people who were entitled to be there to see that everything was done properly.
That would not prove it. The voter's number on the counterfoil does not prove that the correct identity form went with that ballot paper.
Certainly it does, because the voter's number is marked on the counterfoil by the returning officer in the presence of witnesses, who see him record on the identity paper the number of the counterfoil, see him record on the envelope going to this voter the number of the counterfoil, and see him associate with that the ballot paper with the number corresponding to the counterfoil, all that being associated together, put into an envelope and addressed to the voter with whom they are dealing at the time, whose number on the electoral roll has been transferred to the counterfoil in the presence of witnesses. It can then be proved to the court that the person who is related to a particular counterfoil is the person who got all the proper forms that he should have got.
Would the court accept that as proof that the correct identity form and ballot paper were received by the voter? It would be proof that they were sent out.
If that were proved and such a form comes back filled in, that would be proof that the vote that has been sent out has been cast, and there is ample provision to ensure that the vote could not have been cast without an identity form being associated with it if it were cast. If the identity form were not associated with it, or a wrong identity form were associated with it, then it would not be counted.
That appears to be an argument in favour of my contention.
Suppose you had inquisitive Post Office officials, for instance, as we had before, and that when they were examining letters they mixed up two, as they did before, what would happen? Suppose when they were putting them back they put in the wrong identity forms with the voting papers?
The Bill makes full provision to ensure that if the person getting the letter does not receive an identity form, properly numbered, with his envelope and his voting paper, he can draw the returning officer's attention to it and get a duplicate issued.
Why is it necessary to have the ballot paper numbered as well as the counterfoil? I would like to know that. Would it not do to have the counterfoil numbered?
If you have a ballot paper numbered, then the form that will go before the court in the shape of a ballot paper has a certain number. The ballot papers are marked without any possibility of relating that ballot paper to the identity form or to anything else.
That is the point. If you examine Deputy Boland's suggestion you will find that there is no necessity for a serial number on the ballot paper. The only proof required for the fact that a voter did vote can be found by relying upon the identity form which must be returned with the ballot paper. His name is on the identity form, and if that does not accompany the ballot paper when he returns it the vote is rejected. Therefore, the person's identity form in the hands of the returning officer should be sufficient proof that that particular voter's vote was received, whether he himself cast it or not.
That is as far as the vote is concerned. In the event of a subsequent examination being necessary you cannot identity the particular vote.
I cannot imagine any examination which the court would require which would necessitate knowing the particular manner in which a particular voter recorded his vote.
But suppose for a moment that the person voting becomes a bankrupt. That would be the vote of a person not entitled to vote because he was not entitled to be a member of either House.
But if he only became a bankrupt after voting?
If he was a bankrupt at the time he voted, then he was not entitled to vote.
But that person may be a member of the Dáil now. At what particular stage between this and the issuing of the ballot paper must he become a bankrupt in order to disqualify him? Must he not cease to be a member of the House, by having his seat declared vacant, before he can be debarred from voting?
That is a matter for the court.
Is he not still a member of the House until his seat is declared vacant?
That is a matter for the court.
There is no case for having the ballot paper itself marked. I understand you have an electoral list. The counterfoil and the identity form are returned with the ballot paper. The very fact that you have an identity form returned with the counterfoil to correspond with the electoral list on which there is a certain number should. I think, be good enough. I do not think the Minister can make a case for having both the ballot paper and the counterfoil numbered.
To be quite frank, is it not absolutely essential to have the man's number on the ballot paper, as the Government must be in a position to know how everybody voted?
Our point is that everybody should know. We want to have it openly declared how you are voting. We are prepared to stand up and declare that this is our list. What we object to is one Party in the House knowing how everyone voted, and no one else knowing.
Would the Deputy stand for the same thing as regards a Dáil election?
I submit that this country believes in universal education and not selective education, and what we are contending for is that the whole electorate should be educated into how we are to use the authority and vote which they give us. I cannot see that allowing one section of the community, and one interested section of the community, to know how we do that is any substitute for allowing the whole to do it. I regard this as a deliberate contrivance to enable the Government, in the exercise of their powers, to limit to the minimum which the law allows it the rights of the minority in the exercise of that power which they have claimed to make perfectly sure that they know how everybody voted. Now, why not frankly state the fact that somebody can know, and that it is desirable that everybody should know? If I cast a vote for the Seanad I do not cast my own property, but if I cast my vote to elect a member of the Dáil, to elect merely an individual, I do cast my own property, but if I vote as a member of the Dáil to carry out some function here, I cast a vote which belongs to my constituents and they are entitled to know, not the Minister, and certainly not the Minister for Local Government, or any of his nominees, or any people whom he may nominate who have no obligation of personal honour in relation to the discharge of their functions. It is no substitute that his nominees should know. My constituents should know.
Is the Deputy contending that this arrangement here gives an opportunity for the violation of the secrecy of the ballot?
Undoubtedly and unhesitatingly.
I wish the Deputy would be more logical in his explanation of that.
I wish you would be more honest in your explanation.
The Deputy must address the Chair.
The Minister for Local Government addressed me directly.
I do not think so. The Minister said he would like the Deputy to do a certain thing. He spoke in the third person. Deputy Flinn is constantly using the second person. The second person is used now and again, but Deputy Flinn is constantly using it.
I would like to ask the Minister this question: Is it not a fact that if you have an electoral roll and a ballot paper properly marked, that any official who has access to these papers can tell how every person voted?
No. If you like I will go through it again.
You have an electoral roll. A ballot paper is issued to a man and his name and his number are there. There is a number on the ballot paper and on the counterfoil. The ballot paper and the counterfoil are returned. Will the Minister please show how is it possible to preserve the secrecy of the ballot if there is anyone who has access to these papers?
We are not in Committee now.
It is a serious point.
As far as I followed the discussion I take it for granted that it is possible to impugn the election and to have a petition against the election on account of one vote given. That is possible. Acting for the moment on that assumption, the whole of the 200 papers have to go before the judge on the grounds that one vote or two votes have been, as alleged, illegally cast. It may be necessary for the judge to pick out from these 200 votes the one or two votes which were illegally cast, if it is proved they were illegally cast. If there is no number on the ballot paper there will be no means of segregating these two votes from the others, and it will be impossible for the judge, even though he is satisfied the two votes were illegally cast, to rectify the situation and decide which votes were illegally cast.
I admit with the Minister that if the identity form does not accompany the ballot paper that would be held in any court to be sufficient.
My point is to show that it is not possible to relate the ballot paper duly marked and returned on the electoral roll except before a court and by means of the mark on the counterfoil before which court it is declared—
No person who has voted at a Seanad election shall in any legal proceedings to question the election or return of any candidate at such election be required to state for whom he has voted.
An electoral roll is prepared of the electors and the electors on that are numbered serially by the returning officer. He has a set of counterfoils of the ballot papers numbered consecutively, beginning with any number which he decides on. In the presence of witnesses the electoral roll is taken. Let us say that number one on the electoral roll is being dealt with, then number one is marked on the counterfoil. The ballot paper is detached. It is already stamped with the number of the counterfoil. A declaration of identity form is taken out. That is marked in pencil by the returning officer with the counterfoil number, the same number as is on the ballot paper. A small envelope for enclosing the ballot paper to be returned is also taken out, and marked with the number of the ballot paper. Another envelope is taken out for the voter to return his papers in. The whole lot is put into an envelope addressed to the person who is being dealt with and put aside for posting in the way arranged for here. Immediately that the ballot papers are issued, the counterfoil bundle is made up and sealed. An electoral roll is also made up and sealed and cannot be produced except before a court. The papers come back. The ballot paper is folded in the envelope sent out to bring back the ballot papers. The identity form is enclosed separately with that other closed envelope in the outer envelope sent for the return of these things.
On being opened the number of the identity form is checked with the number on the envelope, and the envelope is laid aside unopened. The identity forms are then bundled up and sealed before any of these are opened. It has been established by the identity form that the envelopes have come back from the people duly authorised to send them back, and to whom they have been sent. The envelopes are then opened, and the number on the outside of the envelope is compared with the number on the ballot paper, and in that way the identity forms are related to the ballot paper, but only in that indirect way. That is all done before witnesses representing the candidates. or witnesses who are the candidates in this particular case. If Deputies say that the secrecy of the ballot paper can be violated in any way there is no use in explaining the matter any more or attempting to argue the question.
I would like to relate another story showing how the secrecy of the ballot paper can be violated. Assume that Deputy Duggan suspects the loyalty of Deputy Aird to Cumann na nGaedheal, and suppose that Deputy Aird is number one on the elector's list. It will be easy to remember number one, and if Deputy Duggan happens to see the ballot papers he would know the number on the ballot paper issued to Deputy Aird. It would be no difficult matter for him to remember the number on the ballot paper, and to get to know the manner in which the Deputy's preferences were recorded. In order to preserve the secrecy of the ballot there should be no serial number, and I contend that in case of a petition it would not be necessary to have a number on the ballot paper.
The Deputy may remember one number, but would he remember fifty or sixty?
I am interested only in one. I may have two or three colleagues who would take a note of other numbers.
There is this important point: The regulations expressly state that the ballot papers must be counted face upwards. The serial number is on the back. It is up to the people who are interested in the election to see that secrecy is not violated, and that the returning officer will leave nothing undone to ensure that secrecy is maintained. It is up to people interested in the election to see that secrecy is not violated, and that the returning officer is helped. It is expressly stated that the ballot papers shall be counted face upwards.
I move amendment 3:—
In page 8, Section 17, before sub-section (2) to insert a new sub-section as follows:—
"(2) Sub-section (1) of Section 57 of the Electoral Act, 1923, shall be construed and have effect as if the words ‘the age of thirty years or upwards' were inserted therein in lieu of the words and figures ‘the age of 35 years or upwards' now contained therein."
Are we entitled to assume that Constitution (Amendment No. 8) Bill will become law?
If it does not we will have to alter it again.
If it passes the Dáil it is possible that the Senators may have a decided objection to that particular Bill. Are we entitled to assume it will become law, and to amend the Bill on that assumption?
You are entitled to assume that being responsible for this Bill I will see there is nothing in it that is not in accordance with the Constitution.
You are putting it out of accord with the Constitution.
I will now put Deputy Lemass's amendment:—
In page 8, lines 43-44, First Schedule, Rule 4, to delete paragraph (b).
I will now put the main question: "That the Bill, as amended, be received for final consideration."
We intend voting against the Bill for the main reason that we think that the system of postal voting should not be adopted. We have been listening to explanations of a lot of artifices by which the difficulties that arise could be got rid of. We see no reason why members should not come personally and cast their votes. We also believe that in this particular case the voting should be open. There is no necessity to go into the other points raised in debate. We are going to vote against the Bill.
We propose to vote against this Stage of the Bill for the same reasons as those referred to by Deputy de Valera. We believe that the people responsible for giving such preferential treatment to absentee voters will regret doing so and will have no case to make to the country in the future when asking ordinary citizens to do their duty during election time.
The arguments in favour of postal voting have been so fully gone into that they do not require to be gone into again.
They came in for three minutes.
The work of the Oireachtas will be convenienced by the system of postal voting as against personal voting generally, and the grounds on which postal voting has been introduced are grounds which will, in time, I am sure, commend themselves to Deputies.
