S.I. No. 162/2019 - Direct Election of Mayor Plebiscite Regulations 2019

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 23rd April, 2019.

CONTENTS

THE MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT IN EXERCISE OF THE POWERS CONFERRED ON HIM BY SECTION 41 OF THE LOCAL GOVERNMENT ACT 2019 (NO. 1 OF 2019) HEREBY MAKES THE FOLLOWING REGULATIONS, A DRAFT OF WHICH HAS BEEN APPROVED BY A RESOLUTION PASSED BY EACH HOUSE OF THE OIREACHTAS.

PART I

PRELIMINARY AND GENERAL

Citation.

1. These Regulations may be cited as the Direct Election of Mayor Plebiscite Regulations 2019.

Interpretation.

2. (1) In these Regulations, except where the context otherwise requires—

“the Act of 1992” means the Electoral Act 1992 (No. 23 of 1992);

“the Act of 1997” means the Litter Pollution Act 1997 ;

“the Act of 2019” means the Local Government Act 2019 (No. 1 of 2019);

“ballot paper” has the meaning assigned to it by regulation 13;

“administrative area” has the meaning assigned to it by section 39(2) of the Local Government Act 2019 ;

“elector” means a local government elector;

“local authority” has the meaning assigned to it by section 39(1) of the Local Government Act 2019 ;

“plebiscite returning officer” has the meaning assigned to it by regulation 8;

“local government elector” means a person entitled to vote at a local election;

“local election” has the meaning assigned to it by article 2(1) of the Local Elections Regulations 1995;

“Minister” means the Minister for Housing, Planning and Local Government;

“official mark” has the meaning assigned to it by regulation14;

“plebiscite” means a plebiscite within the meaning of Part 6 of the Local Government Act 2019 ;

“polling day” means the polling day at the local elections in 2019 fixed by the Minister under section 42 of the Local Government Act 2019 ;

“postal voter” means a local government elector whose name is entered in the postal voters list;

“postal voters list” means the list prepared pursuant to section 14 of the Electoral Act 1992 insofar as it relates to local government electors;

“register of electors” means the register of local government electors;

“register of local government electors” has the meaning assigned to it by section 13 of the Electoral Act 1992 ;

“Regulations of 1995” means the Local Elections Regulations 1995 ( S.I. No. 297 of 1995 );

“special voter” means a local government elector whose name is entered in the special voters list;

“special voters list” means the list prepared pursuant to section 17 of the Electoral Act 1992 insofar as it relates to local government electors.

(2) In these regulations—

(a) every reference to a particular officer shall be construed as including a reference to any person duly appointed as deputy for such officer or to act in the place of such officer during the absence or incapacity of the officer or during a vacancy in the office or to whom the duties of the office are assigned;

(b) a reference to a regulation or Schedule is to a regulation of or the Schedule to these regulations, unless it is indicated that reference to some other instrument is intended;

(c) a reference to a paragraph or subparagraph is to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended;

(d) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.

(3) For the purpose of the application by virtue of these regulations to the plebiscite of certain provisions of the Regulations of 1995, the said provisions as so applied shall have effect as if—

(a) a reference in the said Regulations to a local election or an election was a reference to a plebiscite;

(b) a reference in the said Regulations to a returning officer was a reference to a plebiscite returning officer and a reference to a deputy returning officer is a reference to a deputy plebiscite returning officer, except where these Regulations otherwise provide;

(c) a reference in the said Regulations to the register of electors was a reference to the register of local government electors in force for the city of Cork and the city and county of Limerick and the city and county of Waterford within the meaning of section 43 of the Act of 2019;

(d) a reference in the said Regulations to the Regulations of 1995 was a reference to these Regulations, including the provisions of those Regulations applied to the plebiscite by these Regulations;

(e) in article 32 of the said Regulations “the agents of the candidates appointed for this purpose under article 26” was deleted;

(f) in sub-article (1) of article 38 of the said Regulations “, in the presence of the agents, if any,” was deleted;

(g) in article 41 of the said Regulations “and in the presence of the candidates, if any,” was deleted in sub-article (1);

(h) in article 45 of the said Regulations “he or she gives notice of the holding of the plebiscite” was substituted for “the adjournment of the election for the purpose of taking a poll”.

(i) in sub-article (4) of article 55 of the said Regulations “plebiscite” was substituted for “election of members for such local authority”;

(j) in article 58 of the said Regulations that sub-article (2) was deleted;

(k) in article 60 of the said Regulations paragraphs (c) and (d) were deleted;

(l) in sub-article (1) of article 63 of the said Regulations the references to articles 10, 29 and 43 thereof were to articles 16 and 17;

(m) in article 65 of the said Regulations “and if required by any personation agent present in the polling station shall,” were deleted in sub-articles (2) and (4), subparagraphs (c) and (d) of sub-article (4) were deleted, in sub-article (7), “proposal stated therein” was substituted for “particulars stated in respect of each candidate” and “or is a candidate or an agent of a candidate at that election” was deleted in sub-article 9;

(n) in sub-article (2) of article 68 of the said Regulations “any particular result at the plebiscite” was substituted for “the candidature of a particular person or persons or of members of a political party”;

(o) in sub-article (1) of article 70 of the said Regulations the reference to articles 24, 28 and 49 was deleted and “section 40(2) of the Local Government Act 2019 and section 26 of the Local Government Act 2001 ” was substituted for “section 21 of the Act of 1994 and these Regulations”;

(p) in article 73 of the said Regulations “or if so required by a personation agent present in the polling stations,” was deleted in paragraph (a) of sub-article 1, and “,and if so required by a personation agent present in the polling station shall,” was deleted in each place where it occurs;

(q) in article 96 of the said Regulations paragraphs (c) and (d) of sub-article (1) and “the election of any person or” in paragraphs (a) and (b) of the said sub-article were deleted;

(r) in article 97 of the said Regulations paragraphs (b) and (c) and “for a particular person or” in paragraph (a) were deleted;

(s) in article 98 of the said Regulations “manner in which” was substituted for “candidate for whom” in each place where it occurs and for “name of the candidate for whom” in paragraph (c) of sub-article 4;

(t) in article 99 of the said Regulations paragraph (h) and “nomination paper or any certificate of political affiliation or any” in paragraph (g) were deleted, and in the said paragraph (g) “regulation 18” was substituted for “article 61 or 62”;

(u) in article 101 of the said Regulations “a particular result” was substituted for “the candidature of any candidate” in sub-article (1);

(v) in article 105 of the said Regulations “is actively associated in furthering any particular result at the plebiscite” was substituted for “who acts as agent for any candidate at that election or who is actively associated in furthering the candidature of any candidate or promoting the interests of any political party at the election”;

(w) in article 106 of the said Regulations “nomination of candidates or the” was deleted;

(x) in article 108 of the said Regulations “any particular result at the plebiscite” was substituted for “the interest of a political party or furthering the candidature of a candidate or candidates or soliciting votes for a candidate or candidates” in sub-article (2) and “for a candidate or candidates or vote” in paragraph (b) of that sub-article was deleted;

(y) in article 114 of the said Regulations “Any person, other than the plebiscite returning officer, his or her assistants and clerks,” was substituted for “A candidate or the agent of a candidate”;

(z) in article 115 of the said Regulations the reference to article 93 thereof was a reference to regulation 27;

(aa) in article 116 of the said Regulations “or, if the offence was committed in relation to an election as respects which proceedings questioning the election are held before a court, may be commenced within twelve months from the date of the offence or within three months from the decision of the court, whichever period last expires,” was deleted;

(bb) in article 119 of the said Regulations “or that a particular person was a candidate thereat” was deleted;

and with any other necessary modifications.

(4) For the purpose of the application by virtue of these Regulations to the plebiscite of certain provisions of the Act of 1997, the said provisions as so applied shall have effect as if - in section 19(7)(c)(iii) of the said Act “a plebiscite within the meaning of the Local Government Act 2019 ”, was substituted for “a local election within the meaning of the Local Government Act 2001 ,”.

Application of certain provisions of Part XV of the Regulations of 1995.

3. The provisions of regulations 95 to 101, 105 to 108, 110, 111 and 113 to 119 of the Regulations of 1995 shall, subject to the modifications specified in regulation 2(3), apply and have effect in relation to the plebiscite.

Application of certain provisions of the Act of 1997.

4. The provisions of section 19 of the Act of 1997 shall, subject to the modifications specified in regulation 2(4), apply and have effect in relation to the plebiscite.

Secrecy.

5. A person who at the plebiscite is—

(a) present at the issue of ballot papers to postal voters,

(b) present while a special voter is voting,

(c) present at the opening of postal ballot boxes,

(d) admitted to a polling station in any capacity, or

(e) present in any capacity at the counting of the votes,

shall maintain, and aid in maintaining, the secrecy of the ballot.

Prohibition on disclosure of vote.

6. A person who has voted at the plebiscite shall not in any legal proceedings be required to state how he voted.

Publication of notices.

7. Any public notice required by these Regulations to be given by a plebiscite returning officer may be given by any method which the plebiscite returning officer concerned thinks necessary or desirable for the purpose of bringing to the attention of the public the matter the subject of the requirement.

PART II

TAKING THE PLEBISCITE

Plebiscite returning officers.

8. (1) The person who would be the returning officer at the 2019 local elections in the city of Cork, the city and county of Limerick and the city and county of Waterford, shall be the returning officer (in these Regulations referred to as “the plebiscite returning officer”) in that local authority for the purposes of the plebiscite.

(2) The plebiscite returning officer may, in writing, appoint a person to be deputy plebiscite returning officer and may delegate to such deputy such of the functions of the plebiscite returning officer as may be specified in the appointment.

(3) It shall be the duty of the plebiscite returning officer to take the poll at the plebiscite in the city or city and county and to count the votes cast thereat and to do such acts and things as may be necessary for effectually taking the poll and counting the votes in the city or city and county in accordance with these Regulations.

Electoral areas.

9. For the purpose of taking the poll at the plebiscite, each administrative area shall be deemed to be divided into the same local electoral areas as those into which they are for the time being divided for the purpose of local elections and the poll shall be taken separately in each such local electoral area.

Polling districts and polling places.

10. For the purpose of the poll at the plebiscite each administrative area shall be deemed to be divided into the same polling districts as those into which they are for the time being divided in accordance with section 28 of the Act of 1992 and the places which are for the time being appointed as polling places in each such polling district shall be the polling places for the purpose of taking the poll at the plebiscite and references in these Regulations to polling districts and polling places shall be construed accordingly.

Notice of the holding of the plebiscite.

11. No later than 30 days before polling day each plebiscite returning officer shall give public notice in each administrative area of the holding of the plebiscite including the day and hours during which the poll will be taken.

Information for voters.

12. (1) The information for voters published and distributed in accordance with section 40(4) of the Act of 2019 shall be -

(a) sent by the plebiscite returning officer to every elector whose name is on the register of local government electors for the administrative area and is on the postal voters list for such area at the same time as the ballot paper for the poll at the plebiscite is sent to the elector;

(b) sent by the plebiscite returning officer to every elector whose name is on the register of local government electors for the administrative area and is on the special voters list for such area and shall be so sent in sufficient time to be delivered to the elector before the delivery of the ballot paper to the elector;

(c) displayed by a presiding officer in and in the precincts of a polling station.

(2) The plebiscite shall not be invalidated by reason of any failure to display or provide information in accordance with this regulation.

(3) In applying article 65 of the Regulations of 1995 (as applied by regulation 18) the following sub-article shall be substituted for sub-article (7):

“(7) (a) Where a ballot paper is to be marked pursuant to sub-article (5), the presiding officer may assist the elector by reading out in full from the ballot paper the proposal stated therein and asking the voter “Do you approve of or do you object to that proposal?” and shall then, unless it is a case to which paragraph (b) of this sub-article applies, mark the ballot paper in accordance with the answer of the voter, but the presiding officer shall not act on any written instruction.

(b) Where the voter fails to understand the import of the said question, or does not answer the question the presiding officer—

(i) shall read out to the voter the information published and distributed in accordance with section 40(4) of the Local Government Act 2019 ,

(ii) shall then ask the voter “Which do you wish to do — to vote in favour of the proposal or to vote against the proposal?”, and

(iii) shall then mark the ballot paper in accordance with the answer of the voter, but shall not act on any written instruction.”.

Ballot papers.

13. (1) At the plebiscite the ballot paper shall be in the form set out in Part I of the Schedule to these Regulations.

(2) (a) The ballot papers shall be numbered consecutively on the back and the back of the counterfoil attached to each ballot paper shall bear the same number.

(b) The numbers on the ballot papers shall be printed in the smallest characters compatible with legibility and shall be printed on or about the centre of the paper.

(c) Apart from anything permitted by the form set out in the said Schedule nothing shall appear on the ballot paper except in accordance with the provisions of this regulation.

(d) The form of the ballot paper specified in Part I of the Schedule may be adjusted in accordance with directions by the Minister.

(3) It shall be the duty of the plebiscite returning officer to arrange for the printing and procuring of a sufficient quantity of ballot papers.

The official mark.

14. A ballot paper shall at the time of issue be marked with an official mark (in these Regulations referred to as “the official mark”), which shall be either embossed or perforated so as to be visible on both sides of the paper and the plebiscite returning officer shall provide a sufficient number of marking instruments for this purpose.

Officers not to further any particular result.

15. (1) A plebiscite returning officer or a person employed by him or her for any purpose relating to the plebiscite shall not be associated in furthering any particular result at the plebiscite.

(2) The plebiscite returning officer shall not employ in any capacity for the purposes of the plebiscite a person who has been employed by any other person in or about the plebiscite or has been associated in furthering any particular result at the plebiscite.

Voting by postal voters.

16. (1) Every elector whose name is, at the time of the plebiscite, entered in the postal voters list for an administrative area (in these Regulations referred to as a “postal voter”) shall be entitled to vote in that administrative area at the poll at the plebiscite by sending a ballot paper by post to the plebiscite returning officer and shall not be entitled to vote at the plebiscite in any other manner.

(2) The plebiscite returning officer shall, as soon as practicable after giving notice of the plebiscite, send to each postal voter whose name is on the postal voters list for an administrative area a ballot paper and a form of receipt and if the ballot paper duly marked by the said postal voter and accompanied by the said receipt duly signed by the voter is received by the plebiscite returning officer before the close of the poll, it shall be counted by the plebiscite returning officer and treated for all purposes in the same manner as a ballot paper placed in a ballot box in the ordinary way at the taking of the poll.

(3) The provisions of articles 30, 30A, 30B, 31, 32, 33(2) to 33(5), and 34 to 41 of the Regulations of 1995 shall, subject to the modifications specified in regulation 2(3), apply and have effect in relation to postal voting at the plebiscite and, in sending out, receiving and otherwise dealing with the ballot papers of postal voters the plebiscite returning officer shall comply with the provisions of those sections.

Voting by special voters.

17. (1) Every elector whose name is, at the time of the plebiscite, in the special voters list for an administrative area (in these Regulations referred to as “a special voter”) shall be entitled to vote in that administrative area at the poll at the plebiscite in the manner described in article 46 of the Regulations of 1995 and shall not be entitled to vote in any other manner.

(2) The provisions of articles 42 and 44 to 48 of the Regulations of 1995 shall, subject to the modifications specified in regulation 2(3), apply and have effect in relation to voting by special voters at the plebiscite and, in delivering, receiving and otherwise dealing with the ballot papers of special voters, the plebiscite returning officer shall comply with the provisions of those regulations.

Taking the poll at the plebiscite.

18. The provisions of articles 53 to 64, 65(1), (2), (3), (4), (5), (6), (8), (9), 66, 67(1), (3), (4) and (5) and 68 to 73 of the Regulations of 1995 shall, subject to the modifications specified in regulation 2(3), apply and have effect in relation to the taking of the poll at the plebiscite.

PART III

THE COUNTING OF THE VOTES

Arrangements in relation to the counting of votes.

19. (1) The counting of the votes at the plebiscite shall commence not later than the hour of 9am on the day next following polling day.

(2) The plebiscite returning officer shall appoint a place within the administrative area or convenient to said area as the place at which the officer will count the votes and shall, at the place so appointed, provide suitable accommodation and all equipment and furniture necessary for counting the votes in accordance with this Part and shall make adequate arrangements for the safe custody of the ballot papers and other documents relating to the plebiscite.

(3) The plebiscite returning officer shall, where practicable, ensure that the place duly appointed under paragraph (2) at which votes will be counted is accessible to wheelchair users.

Attendance at the counting of votes.

20. The plebiscite returning officer, the assistants and clerks of the plebiscite returning officer, members of the Garda Síochána on duty may be present at the counting of the votes and no other person shall be present without the permission of the plebiscite returning officer.

Preliminary proceedings.

21. (1) At the time fixed and at the place appointed under article 19(1) the plebiscite returning officer shall open the ballot boxes and extract the ballot papers therefrom.

(2) For the purposes of paragraph (1), the manner in which a ballot box, being a box containing not more than 50 ballot papers, shall be opened shall be such that the preferences on the individual ballot papers cannot be read by other persons present at the count.

(3) The ballot papers extracted by the plebiscite returning officer from each ballot box shall be counted and their total number shall be compared with the number shown in the appropriate ballot paper account. The plebiscite returning officer shall prepare a statement showing the result of this comparison in respect of all the ballot boxes.

(4) The plebiscite returning officer shall mix together the whole of the ballot papers and shall proceed to count the votes in accordance with this Part.

(5) The plebiscite returning officer, while counting and recording the number of ballot papers, shall cause the said papers to be kept face upwards and shall take due precautions to prevent any person from seeing the numbers printed on the backs of the said papers.

Time for the counting of votes.

22. The plebiscite returning officer shall, so far as practicable, proceed continuously with the counting of the votes, except during time for necessary rest and refreshment.

Handling of ballot papers.

23. Any person, other than the plebiscite returning officer, his or her assistants and clerks shall not handle ballot papers during the counting of the votes.

Invalid ballot papers.

24. (1) A ballot paper—

(a) which does not bear the official mark, or

(b) on which the mark “x” or any other mark which, in the opinion of the plebiscite returning officer, clearly indicates a vote, is not placed at all or is not so placed as to indicate a vote in favour of or a vote against the proposal which is the subject of the plebiscite, or

(c) on which the mark “x” or any other mark which, in the opinion of the plebiscite returning officer, clearly indicates a vote, is so placed as to indicate both a vote in favour of and a vote against the proposal, or

(d) on which anything is written or marked which, in the opinion of the plebiscite returning officer, is calculated to identify the elector,

shall be invalid and not counted, but a ballot paper shall not be invalid by reason only of its bearing the figure “1” or the word “one” or any other mark which, in the opinion of the plebiscite returning officer, clearly indicates a vote in favour of or against the proposal.

(2) The plebiscite returning officer shall cause the ballot papers to be scrutinised for the purpose of discovering any papers liable to be rejected as invalid.

(3) The plebiscite returning officer shall endorse the word “rejected” on any ballot paper which under this regulation is not counted. The plebiscite returning officer shall prepare a statement in the form set out in the Schedule to these Regulations showing the number of ballot papers rejected under each of the sub-paragraphs (a) to (d) of paragraph (1).

(4) The plebiscite returning officer may endorse on any ballot paper not rejected as invalid an indication of the officer’s decision on it in relation to its validity without, however, interfering with any mark placed by the elector on the ballot paper.

(5) The decision of the plebiscite returning officer, whether expressed or implied by his acts, on any question which arises in relation to any ballot paper shall be final.

Counting of the votes.

25. After the ballot papers have been mixed in accordance with regulation 21 the plebiscite returning officer shall, rejecting any that are invalid, arrange them in parcels according to the votes recorded on them and shall count and record the number of votes given in favour of the proposal which is the subject of the plebiscite and the number of votes given against that proposal and shall ascertain the total number of valid papers for the administrative area concerned.

Recount.

26. (1) The plebiscite returning officer may recount the votes recorded on all the ballot papers or on the ballot papers contained in any particular parcel.

(2) Nothing in this regulation shall make it obligatory on the plebiscite returning officer to recount more than once the votes recorded on the ballot papers contained in any particular parcel.

Retention and disposal of documents.

27. (1) On the completion of the counting of the votes in an administrative area, the plebiscite returning officer for the local authority area shall place in separate sealed packets—

(a) the counted ballot papers,

(b) the ballot papers not counted because of invalidity under regulation 24,

(c) the unused and spoilt ballot papers, and

(d) the counterfoils of ballot papers issued at polling stations,

and shall mark on each packet particulars of its contents, the date of the polling day at the plebiscite and the administrative area to which they relate.

(2) The plebiscite returning officer shall also place in separate sealed packets—

(a) the marked copies of the register of electors used at polling stations,

(b) the ballot paper accounts and the statement referred to in regulations 21 and 24(3), and

(c) any authorisations issued by the plebiscite returning officer to electors pursuant to regulation 61 and 62 of the 1995 Regulations as applied by regulation 18,

and shall mark on each packet particulars of its contents, the date of the polling day at the plebiscite and the administrative area to which they relate.

(3) The plebiscite returning officer shall retain the documents referred to in paragraphs (1) and (2) and regulations 16(3) and 17(2) for 6 months from the date of the certificate under regulation 28 and shall then, cause the documents to be destroyed.

The plebiscite certificate.

28. (1) The plebiscite returning officer shall prepare and sign a plebiscite certificate in the form set out in the Schedule to these Regulations stating the number of votes recorded in favour of the proposal which is the subject of the plebiscite, the number of votes recorded against the proposal, and whether a majority of the votes recorded at the plebiscite was or was not recorded in favour of the proposal.

(2) As soon as may be after signing the plebiscite certificate, the plebiscite returning officer shall

(a) send a copy of the certificate to the relevant local authority and to the Minister, and

(b) publish a copy of the certificate in Iris Oifigiúil.

SCHEDULE

PART I

Regulation 13

FORM OF BALLOT PAPER AT THE PLEBISCITE ON DIRECT ELECTION OF MAYOR – MAY 2019

(Front of Paper)

PART II

Regulation 24

Plebiscite on Direct Election of Mayor– May 2019 – Form DEMP1

Statement in relation to REJECTED ballot papers

The number of ballot papers rejected at the counting of the votes in the administrative area of ____________________________________ in connection with the Plebiscite on Direct Election of Mayor was as follows –

I certify that the particulars set out in the above report are correct.

Signed: _______________________________________

Plebiscite Returning Officer

Date: ___________________________________ 2019

PART III

Regulation 29

Local Government Act 2019

Plebiscite on Direct Election of Mayor- Form DEMP2

Certificate of Result

Certificate stating the result of the voting in the plebiscite taken on the 24th day of May 2019, prepared by the Plebiscite Returning Officer.

The number of valid votes cast in the administrative area of:

_________________________________________

was as follows:

GIVEN under my Official Seal,

Dated this 17th day of April, 2019.

EOGHAN MURPHY,

Minister for Housing, Planning and Local Government.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These regulations set out procedural and administrative matters in relation to the conduct of plebiscites in Cork city, Limerick city and county and Waterford city and county on the direct election of mayors. They set out the statutory arrangements for the taking of a plebiscite, including the form of the ballot paper, the counting of votes and electoral offences.