S.I. No. 460/2002 - Electoral (Amendment) Act, 2001 (Section 48) Order, 2002


The Minister for the Environment and Local Government in exercise of the powers conferred on him by section 48 of the Electoral (Amendment) Act, 2001 (No. 38 of 2001) hereby makes the following order:

Citation.

1.       This order may be cited as the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002.

Interpretation.

2.       (1)      In this Order —

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

“the Act of 1994” means the Referendum Act, 1994 (No. 12 of 1994);

“the Act of 2001” means the Electoral (Amendment) Act, 2001 (No. 38 of 2001).

“cartridge or disc” means a device that is used in a voting machine to record each vote;

“electronic” includes electrical, digital, magnetic, optical, electro-magnetic, biometric, photonic and any other form of related technology;

“electronic voting system” means a voting system in which the votes are automatically counted and the results automatically tabulated by use of electronically operated apparatus;

“voting machine” means an apparatus on which voters cast their votes, that records each vote, and that furnishes a total of the number of votes cast on the machine at a referendum;

“voting system” means a method of casting and counting votes that is designed to function wholly or partly by use of mechanical, electromechanical or electronic apparatus and includes the procedures for casting and counting votes and the programmes, operating manuals, printouts and other software necessary for the system's operation;

“voting system equipment” means any kind of mechanical, electro mechanical or electronic apparatus for use in a voting system.

(2)      Where a section of the Act of 1992 is applied to a referendum by any section of the Act of 1994, including any such section as modified and applied by Part 3 of the Act 2001, each such section shall be deemed to be applied to the conduct of a referendum in a constituency in accordance with this Order.

Direct vote recording and electronic vote counting.

3.       (1)      Notwithstanding the provisions contained in Parts II and III of the Act of 1994, voting and vote counting at a referendum may be undertaken on voting system equipment approved for such purposes by the Minister.

(2)      The Minister may by order designate a constituency or constituencies in which voting machines and electronic voting systems or other equipment approved under subarticle (1) shall be used at a referendum.

(3)      Every order made under this article shall be laid before each House of the Oireachtas as soon as may be after it is made.

(4)      The Minister may, subject to sections 14 and 15 of the Act of 1994, whenever he or she thinks proper so to do, issue to the referendum returning officer and to all local returning officers or any local returning officer such instructions in relation to voting and vote counting under this Order as he or she shall consider necessary or expedient in order to ensure smooth and efficient voting and vote counting and to secure uniformity of procedures under this Order.

(5)      The referendum returning officer and any local returning officer shall not be required or authorised by an instruction given by the Minister under subarticle (4) to do any act (whether of commission or omission) which is contrary to this Order or the Act of 1994.

Expenses.

4.       (1)      The expenses incurred by the referendum returning officer or local returning officer in acquiring voting systems for the purposes of this Order shall be paid by the Minister for Finance out of the Central Fund or the growing produce thereof.

(2)      On request of the referendum returning officer or local returning officer for an advance on account of his or her expenses under subarticle (1), the Minister for Finance may, if he or she thinks fit on such terms as he or she thinks fit, make such an advance.

(3)      An advance under subarticle (2) may be made to the referendum returning officer or local returning officer irrespective of whether an order under section 10 of the Act of 1994 has been made or not or a scale of maximum charges under section 16 of the Act of 1994 has been made or not.

(4)      An account of expenses under this article shall be included in the account to be submitted by the referendum returning officer or the local returning officer concerned to the Minister for Finance under section 14 or 16 of the Act of 1994.

(5)      The expenses incurred by the Minister in taking steps to advertise or otherwise give publicity to any voting system to be, or which has been, introduced in one or more constituencies or to provide an educational scheme in respect of such a system shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of the Central Fund or the growing produce thereof.

Modification of certain provisions of the Act of 1994.

5.       For the purpose of the application by virtue of this Order to voting and the counting of votes under this Order of certain provisions of the Act of 1994, including certain provisions of the Act of 1992 applied to referenda by section 2(3) of the Act of 1994, the said provisions as so applied shall have effect as if—

(a)      a reference in any such provision to a ballot paper or ballot papers, other than in the case of postal voting and voting by special voters, were a reference, where appropriate, to a ballot paper displayed on a voting machine;

(b)      a reference in any such provision to mark or marking in relation to a ballot paper, other than in the case of postal voting and voting by special voters, were a reference to pressing the designated space adjacent to the question “if you approve” or “if you do not approve” on a ballot paper displayed on a voting machine;

(c)      a reference in any such provision to a ballot box or ballot boxes, other than in the case of postal voting and voting by special voters, were a reference to a voting machine or voting machines;

(d)      a reference in any section of the Act of 1994 or the Act of 1992 as modified by section 38 of the Act of 2001 to “this Act” shall be deemed to include this Order;

(e)      a reference to “Part 3 of the Electoral (Amendment) Act, 2001 ” in any section of the Act of 1992 as applied by section 38 of the Act of 2001 shall be deemed to include this Order;

(f)      in section 2(3) of that Act —

(i)       there were inserted after “deleted” in paragraph (f) “and the counting of postal votes and special voters votes in accordance with article 10 of the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002;

(ii)      there were inserted after paragraph (i) the following paragraph;

“(ii) in section 75 for “as a ballot box for the purposes of section 114” there were substituted “in accordance with article 10 of the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002. The returning officer shall count and note the number of ballot papers placed in the ballot box and include such details and the details referred to in section 73(4) in the statement referred to in section 76(5)”;

(g)      in section 7 of that Act, there were inserted “and the entering of votes on postal and special voter ballot papers on a voting machine” after “postal ballot boxes” in paragraph (c);

(h)      in section 15(4) of that Act, for “open the ballot boxes and count the votes”, in each place where those words occur, there were substituted “open the postal voter ballot boxes and count the votes in accordance with the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002”;

(i)       in section 24 of that Act —

(i)       there were inserted “or in the Schedule to the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002” after “this Act” in paragraph (a) of subsection (1);

(ii)      there were inserted “for postal and special voters” after “ballot papers” in each place where those words occur in paragraphs (a) and (b) of subsection (5); and

(iii)     there were inserted “or in the Schedule to the Electoral (Amendment) Act 2001 (Section 48) Order, 2002” after “Second Schedule” in subsection (5)(c);

(j)       in section 25(1) of that Act, there were inserted “for a postal or special voter” after “ballot paper”;

(k)      in section 26 of that Act—

(i)       there were inserted “and at the entry of votes on postal voters ballot papers on a voting machine” after “boxes” in paragraph (b) of subsection (1);

(ii)      for “ballot boxes have been sealed by the presiding officer pursuant to section 110 of the Act of 1992 (as applied by section 32)” in subsection (6), there were substituted “voting machines are closed down by the presiding officer pursuant to article 9 of the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002,”;

(iii)     there were inserted “and the entry of votes on postal voters ballot papers on a voting machine” after “postal ballot boxes” where those words first occur in subsection (7) and there were inserted “and the votes on the postal voters ballot papers are entered on a voting machine” after “to be opened” in that subsection;

(l)       in section 28(2) of that Act for “ballot paper placed in a ballot box” there were substituted “vote cast on a ballot paper on a voting machine”;

(m)     in section 38 of that Act—

(i)      in subsection (1) there were deleted all the words from “sealed packets” down to and including “polling stations,” and there were substituted “sealed packets the cartridges or discs from voting machines and the statements referred to in articles 7(1), 9(2) and 10(5) and (6) of the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002 ”; and

(ii)      for “section 114 of the Act of 1992 (as applied by section 33)” in paragraph (b) of subsection (2) there were substituted “article 11 of the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002 ”;

(n)      in section 39 of that Act the substitution for paragraph (d) of subsection (2) of the following:

“(d)    the cartridge or discs referred to in subsection (1) of section 38 (as that subsection applies by virtue of the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002) and the documents referred to in paragraphs (a) and (b) of article 10(9) of that Order.”.

Preparation of voting machines.

6.       (1)      (a)     The referendum returning officer shall, after the content of a ballot paper is finalised, arrange for the printing and procuring of a sufficient quantity of such ballot papers for use on voting machines and to supply as soon as practicable to the local returning officers concerned such number of ballot papers for use on voting machines as those officers reasonably require;

(b)      the local returning officer shall arrange to have installed on the voting machines for his or her constituency the ballot paper referred to in paragraph (a), programme the details of the ballot paper in the cartridges or discs for recording votes to be cast on each such voting machine and have such a cartridge or disc installed in each voting machine.

(2)      The local returning officer shall ensure that, after installing a ballot paper and a cartridge or disc as aforesaid in the machine, each voting machine is operating satisfactorily.

(3)      The local returning officer shall cause the compartment of the machine which contains a cartridge or disc to be locked in such a manner as to prevent the compartment being interfered with without breaking the lock except in accordance with article 9.

Opening of the poll.

7.       (1)      Immediately before the commencement of the poll the presiding officer at each polling station, after ensuring that the lock on the machine referred to in article 6 has not been interfered with, shall operate the voting machine in his or her charge to demonstrate to such persons as are present in the polling station that no votes are cast or recorded on the machine. The presiding officer shall cause a printed statement to be produced by the machine showing the two questions (yes and no) on the ballot paper and that no votes are cast or recorded on the machine. The statement shall be signed by the presiding officer and witnessed by an agent or other person in the polling station. The presiding officer shall then place the voting machine in his or her view during the poll.

(2)      A referendum shall not be questioned on the grounds that the requirement in subarticle (1) with respect to the production by a voting machine of the printed statement referred to in that subarticle has not been complied with.

Procedure for voting.

8.       (1)      Subject to the provisions of sections 103, 104, 105 and 111 of the Act of 1992, as applied to this Order by articles 2 and 5 and sections 28, 29 and 31 of the Act of 1994, the presiding officer shall permit a presidential elector, who applies to vote and declares his or her name and address, to vote on a voting machine.

(2)      Immediately before permitting a presidential elector to vote—

(a)      the number (including polling district letter) and name of the elector as stated in the register shall be called out,

(b)      a mark shall be placed in the register against the number of the elector to denote that the elector has been permitted to vote, and

(c)      the presiding officer or person authorised by him or her shall open the voting machine.

(3)      A presidential elector on receiving permission to vote shall (subject to the provisions of section 103 of the Act of 1992 as applied to this Order) go alone to one of the voting machines in the polling station and there shall secretly record his or her preference on the ballot paper displayed on the voting machine and shall then cast his or her vote by pressing the vote button on that machine. He or she shall vote without undue delay and shall leave the polling station as soon as he or she has voted.

(4)      Where an elector fails to cast his or her vote by pressing the vote button on the machine, the presiding officer shall de-activate the voting machine without approaching the voting machine.

(5)      In a case to which subarticle (4) applies, an elector shall not be entitled to re-apply to vote at the poll.

(6)      The presiding officer shall keep a separate record and make out a separate statement in a form directed by the Minister of the number of electors permitted to vote on each voting machine in the polling station and the number of instances arising under subarticle (4) with respect to the machine.

Duties of presiding officer at close of poll.

9.       (1)      At the time fixed for the close of the poll the presiding officer shall take steps to ensure that no further presidential electors are admitted to the polling station, but any elector on the premises at that time shall, subject to the provisions of the Act of 1994 and this Order, be entitled to vote.

(2)      As soon as practicable after the close of the poll, the presiding officer after ensuring that the lock referred to in article 6 on each voting machine in the polling station has not been interfered with shall cause a statement showing the two questions (yes and no) on the ballot paper and the total number of votes recorded on the machine at the polling station to be produced by the machine. The statement shall be signed by the presiding officer and witnessed by another person in the polling station. The presiding officer shall then open the lock and remove the cartridge or disc from each such voting machine so that no further votes can be entered therein.

(3)      The presiding officer shall immediately send the said cartridge or disc together with the statements produced at the opening and close of the poll referred to in article 7(1) and subarticle (2) to the local returning officer together with a polling station reconciliation account, in such form as may be directed by the Minister, made out by him or her and shall seal up in separate packets—

(a)      the marked copies of the register of presidential electors;

(b)      a statement prepared in accordance with section 104(2) of the Act of 1992 as applied by this Order;

(c)      any authorisations given by the local returning officer under section 31 of the Act of 1994 authorising persons to vote at the polling station and any undertakings by a personation agent to prove that a person has committed personation; and

(d)      unused stationery and other documents and materials relating to the referendum,

and shall deliver all such packets to the local returning officer.

(4)      The local returning officer shall make adequate arrangements for the safe custody of the packages delivered in pursuance of this article and of all documents connected with the poll.

(5)      A referendum shall not be questioned on the grounds that the requirement in subarticle (2) with respect to the production by a voting machine of the printed statement referred to in that subarticle has not been complied with.

Counting of postal and special voter ballot papers under this Part.

10.     (1)      The sealed ballot box containing postal and special voters ballot papers shall be opened, in the presence of agents and not less than 2 members of the local returning officer's staff, before the conclusion of voting on polling day.

(2)      The ballot papers extracted by the local returning officer from the said ballot box shall be counted and their total number compared with the number shown in the appropriate ballot paper account prepared under section 76 of the Act of 1992 as applied to this Order by article 2.

(3)      The local 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.

(4)      Section 34 of the Act of 1994 shall apply to ballot papers dealt with under this section.

(5)      The local returning officer shall reject any of the ballot papers that are invalid and before commencing the entry of ballot paper preferences, the local returning officer shall operate the voting machine in his or her charge, which shall have a cartridge or disc installed in it in accordance with article 6, to demonstrate to such persons as are present that no votes are cast or recorded on the voting machine. The local returning officer shall cause a printed statement to be produced by the voting machine showing the two questions (yes and no) on the ballot paper and that no votes are cast or recorded on the machine. The local returning officer shall then in the presence of agents and not less than 2 members of his or her staff enter the preferences shown on the postal and special voters ballot papers on the ballot paper displayed on the voting machine. After a vote preference has been entered on the said ballot paper from each postal or special voter ballot paper, the local returning officer shall then press the vote button on the voting machine.

(6)      On completion of the entry of the votes in the voting machine, the local returning officer shall cause a printed statement to be produced by the machine showing the questions (yes and no) on the ballot paper and the number of votes recorded.

(7)      The statements produced under subarticles (5) and (6) shall be signed by the local returning officer or a person authorised by him or her and witnessed by an agent or if no agent is present by another person present.

(8)      The local returning officer shall extract the cartridge or disc from the voting machine and retain it, together with statements produced by the voting machine, in a sealed envelope until the counting of votes commences in accordance with article 11.

(9)      On completion of the activity referred to in subarticle (8), the local returning officer shall place in separate sealed packets—

(a)      the postal and special voters ballot papers, and

(b)      the ballot papers rejected under subarticle (5),

and shall mark on each packet particulars of its contents, the date of the polling day at the referendum and the constituency to which it relates and such packets shall be sent to the referendum returning officer together with the documents specified in section 38 of the Act of 1994.

(10)    A referendum shall not be questioned on the grounds that the requirement in subarticle (5) or (6) with respect to the production by a voting machine of the printed statement referred to in subarticle (5) or (6) has not been complied with.

Preliminary proceedings and time for counting of votes.

11.     (1)      Following the closing of the poll, the local returning officer, at the place appointed under section 112 of the Act of 1992 as modified by section 38 of the Act of 2001 and as applied to a referendum by section 33 of the Act of 1994, shall, unless circumstances arise that render it impracticable at that time to do so, proceed with the counting of the votes, in the presence of agents, as the cartridges or discs referred to in articles 9 and 10 are received at the count centre. If circumstances as aforesaid arise, the local returning officer shall, upon those circumstances ceasing to exist, proceed with the counting of the votes in the manner aforesaid.

(2)      Immediately on receipt of the cartridges or discs from the various polling stations, including the cartridge or disc containing the votes of postal and special voters, the local returning officer in the presence of the agents shall insert each cartridge or disc in an apparatus provided in the constituency concerned for the purpose of counting the votes entered in the voting machines in the various polling stations in that constituency (in this Order referred to as a “constituency vote counting machine”).

(3)      The local returning officer shall compare the number of votes shown on the constituency vote counting machine in respect of each cartridge or disc from a voting machine with the number of votes recorded on the statements prepared pursuant to articles 9 and 10 in respect of each machine and shall prepare a statement showing the result of this comparison in respect of all the voting machines. The local returning officer shall, on request, allow an agent to be present at that procedure and shall on request provide a copy of the second-mentioned statement to any agent.

(4)      When the cartridges or discs are received from all the voting machines for the constituency and are dealt with in accordance with subarticle (2), the local returning officer shall cause the constituency vote counting machine to mix the votes recorded in all the cartridges or discs inserted on the said machine, to create a table of the mixed votes which shall be numbered in consecutive order, the number “1” being assigned to the vote placed highest in the table the number “2” being assigned to the vote placed next highest in the table and so on, and to proceed to cause the said machine to count the votes in accordance with Part III of the Act of 1994, as applied to this Order by article 12.

Application of Part III of the Act of 1994.

12.     (1)      Part III of the Act of 1994, other than subsections (1) to (4) of section 34 and section 36, shall apply to the counting of votes under this Order. Any reference in that Part III to a ballot paper or paper shall be construed as a reference to a vote cast on a voting machine or, in the case of a reference to postal or special voters ballot papers, a vote entered in a voting machine.

(2)      Any reference to the functions referred to in section 35 of the Act of 1994, as applied to this Order, being performed by the local returning officer shall be construed as a reference to the performance of those functions by electronic methods.

(3)      Section 35 of the Act of 1994, as so applied, shall have effect as if the reference in that section to “section 114 of the Act of 1992 (as applied by section 33)” were a reference to article 11 of this Order and the words “, rejecting any that are invalid, arrange them in parcels according to the votes recorded on them and shall” were deleted.

Election petitions.

13.     Part IV of the Act of 1994 shall apply to voting and vote counting under this Order as if for section 47 of the said Act, there were substituted the following section:

“Counting of votes afresh.

47.(1)    The court may, for the purposes of the trial of a referendum petition, if it thinks fit, order—

(a)    that all the votes cast at the referendum on voting machines in a constituency shall be counted afresh, or

(b)    that all the votes so cast or recorded on voting machines contained in particular ballot modules shall be so counted

and where the court so orders, the provisions of this section shall have effect. For the purpose of enabling such an order to be carried out, the software used for counting votes cast on voting machines shall include a capability of providing a table of the preference recorded for each vote cast at the poll at the referendum, including the vote number referred to in article 11(4) of the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002 and a separate record of each vote cast at the referendum, showing the preference recorded on it and the vote number referred to in that article 11(4).

(2)    Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3), (4) and (5) and to such modifications (if any) as the court considers necessary, the provisions of Part III, of the Act of 1994 as applied by the Electoral (Amendment) Act, 2001 (Section 48) Order, 2002, relating to the counting of votes at a referendum shall apply to such counting.

(3)    In counting the votes afresh pursuant to an order under this section, the count shall begin without disturbing the mix carried out by the constituency vote counting machine.

(4)    Where votes are counted afresh pursuant to an order under this section and the court decides that votes shall be added to, or removed from, the vote table referred to in article 11(4) of the Electoral (Amendment) Act 2001 (Section 48) Order, 2002 the software shall be capable of so adding or removing votes so that there shall be a minimum disturbance to the mix carried out by the constituency vote counting machine prior to the original count.

(5)    The court shall have power to reverse any decision of the local returning officer at the original count.

(6)    The costs of giving effect to an order under this section shall be paid by the Minister for Finance out of the Central Fund or the growing produce thereof and section 16 shall, with respect to the services and expenses properly rendered or incurred by the local returning officer for the purposes of, or in connection with, giving effect to the order, apply in the same manner as it applied in respect of the services and expenses rendered or incurred by the local returning officer for, or in connection with, the relevant referendum.”.

SCHEDULE

Form of ballot paper

(Space for title if any)

An bhfuil tú ag toiliú leis an togra chun an Bunreacht a leasú atá sa Bhille thíosluaite?

Do you approve of the proposal to amend the Constitution contained in the undermentioned Bill?

 

 

 

 

N? BRÚIGH ACH AON CHNAIPE AMH?IN PRESS ONE BUTTON ONLY

M? THOIL?ONN TÚ, brúigh an cnaipe seo

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IF YOU APPROVE, press this button

MURA DTOIL?ONN TÚ, brúigh an cnaipe seo

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IF YOU DO NOT APPROVE, press this button

GIVEN under the Official Seal of the Minister for the Environment and Local Government this 21st day of September, 2002.

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MARTIN CULLEN

____________________________________

Minister for the Environment and Local Government.

Explanatory Note

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

This Order provides for the adaptation and modification of relevant sections of the Referendum Act, 1994 to provide for the use of voting machines and electronic vote counting in designated constituencies at a referendum.