Electoral (Amendment) Act 2004

PART 1 Preliminary and General

1. Short title, collective citations, construction and commencement.

1. —(1) This Act may be cited as the Electoral (Amendment) Act 2004.

(2) The Electoral Acts 1992 to 2002 and this Act may be cited together as the Electoral Acts 1992 to 2004 and shall be read together as one.

(3) The European Parliament Elections Acts 1992 to 2004 and this Act in so far as it relates to European Parliament elections shall be read together as one and this Act (in so far as it so relates) shall be included in the collective citation “European Parliament Elections Acts 1992 to 2004”.

(4) The Presidential Elections Acts 1992 to 2001 and this Act in so far as it relates to presidential elections may be cited together as the Presidential Elections Acts 1992 to 2004, and shall be read together as one.

(5) The Referendum Acts 1992 to 2001 and this Act in so far as it relates to referendums may be cited together as the Referendum Acts 1992 to 2004 and shall be read together as one.

(6) The Local Elections Acts 1974 to 2002, the Local Government (No. 2) Act 2003 and this Act in so far as it relates to local elections may be cited together as the Local Elections Acts 1974 to 2004 and shall be read together as one.

(7) Section 34 and the Local Government Acts 1925 to 2003 may be cited together as the Local Government Acts 1925 to 2004 and shall be read together as one.

(8) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(9) An order under subsection (8) shall be laid before each House of the Oireachtas as soon as may be after it is made.

2. Offences relating to voting system equipment.

2. —(1) A person shall be guilty of an offence if—

(a) wilfully and without lawful authority, he or she takes, destroys, conceals, opens or otherwise interferes with any voting system equipment, or

(b) he or she maliciously destroys, tears or defaces any voting machine equipment.

(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding €3,500 or imprisonment for a term not exceeding 12 months or both.

3. Repeal.

3. — Section 48 of the Electoral (Amendment) Act 2001 is repealed.

PART 2 Vote Recording and Electronic Vote Counting

4. Interpretation.

4. —(1) In this Part—

“Act of 1992” means the Electoral Act 1992;

“Act of 1993” means the Presidential Elections Act 1993;

“Act of 1994” means the Referendum Act 1994;

“Act of 1997” means the European Parliament Elections Act 1997;

“Act of 2001” means the Electoral (Amendment) Act 2001;

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

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

“election” means, as the context may require, a Presidential election, a European election or a local election;

“electronic” includes electrical, digital, magnetic, optical, electromagnetic and any other form of related technology;

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

“enactment” includes an instrument made under an enactment;

“relevant Act or Regulations” means, as appropriate, the Act of 1993, the Act of 1994, the Act of 1997 or the Regulations of 1995;

“returning officer” means, as the context may require, a returning officer for the election or referendum concerned including a local returning officer;

“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 an election or 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, electro-mechanical 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 provision of the Act of 1994, including any such section as modified and applied by Part 3 of the Act of 2001, each such section shall be deemed to be applied to the conduct of a referendum in a constituency in accordance with this Act.

(3) Where a section of the Act of 1992 is applied to a presidential election by any provision of the Act of 1993, including any such section as modified and applied by Part 3 of the Act of 2001, each such section shall be deemed to be applied to the conduct of a presidential election in a constituency in accordance with this Act.

5. Use of voting machines and electronic vote counting.

5. —(1) Notwithstanding the provisions contained in Parts III and V of the Act of 1993, Parts II and III of the Act of 1994, Parts VI to XI of the Second Schedule to the Act of 1997 and Parts IX to XIII of the Regulations of 1995, voting and vote counting at an election or at a referendum may be undertaken on voting system equipment approved for such purpose under Part 3 of the Act of 2001.

(2) Save to the extent that provision corresponding to a provision of that Part is made elsewhere by this Act, Part 3 of the Act of 2001 shall apply to an election or referendum referred to in subsection (1) as if a reference in that Part to a Dáil election were a reference to such an election or referendum as appropriate and with other necessary modifications.

(3) The Minister may, if he or she is of opinion that the public interest so requires, by order designate—

(a) one or more or all constituencies,

(b) one or more or all local electoral areas,

as being a constituency or constituencies or a local electoral area or areas in which voting system equipment approved under section 36(1) of the Act of 2001 shall be used at an election or referendum.

(4) The Minister may by order amend or revoke an order under this section or section 36(2) of the Act of 2001 (including an order under this subsection made in relation to either of those sections).

(5) The Minister may, whenever he or she thinks proper so to do, issue to a returning officer such instructions in relation to voting and vote counting under this Part 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 Part.

(6) A returning officer shall not be required or authorised by an instruction given by the Minister under subsection (5) to do any act (whether of commission or omission) which is contrary to the Act of 1993, the Act of 1994, the Act of 1997 or the Regulations of 1995.

6. Application of certain provisions of relevant enactments.

6. —The provisions of—

(a) Parts I to III and VII of the Act of 1993,

(b) Parts I, II and IV of the Act of 1994,

(c) Parts I and II of the Act of 1997 and Parts I to IV, VI to X, XII and XIV to XVI of the Second Schedule to that Act, and

(d) Parts II, IV to VII, IX to XII and XIV to XVI of the Regulations of 1995,

shall, subject to the modifications specified in Schedule 1, 2, 3 or 4 to this Act, apply and have effect in relation to voting and vote counting under this Part at a relevant election or, as the case may be, a referendum.

7. Modification of relevant enactments in their application for purposes of Act.

7. — Schedules 1 to 4 to this Act have effect for the purpose of modifying certain enactments in so far as those enactments apply for the purposes of this Act.

8. Preparation of voting machines.

8. —(1) The returning officer at an election or referendum 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, where relevant, 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.

(2) The returning officer or the local returning officer shall arrange to have installed on the voting machines for his or her constituency or local electoral area the ballot paper referred to in subsection (1), shall 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.

(3) The returning officer or 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.

(4) The returning officer or local returning officer shall cause the compartment of the machine which contains a cartridge or disc to be locked and sealed in such a manner as to prevent the compartment being interfered with without breaking the lock or seal except in accordance with section 11.

9. Opening of poll.

9. —(1) Immediately before the commencement of the poll at an election or referendum, the presiding officer at each polling station, after ensuring that the lock on the machine referred to in section 8 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 names of candidates on the ballot paper at the election or the two questions on the ballot paper in the case of a referendum 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) If, for whatever reason, the voting machine concerned fails to produce the printed statement referred to in subsection (1), the information that would have been recorded in that statement, being information displayed on the voting machine's display screen, together with any other information specified by the form to be entered on it, shall be entered on a form directed by the Minister for the purposes of this subsection. The form shall be signed by the presiding officer and witnessed by an agent or other person in the polling station.

10. Procedure for voting.

10. —(1) Subject to the provisions in the relevant Act or Regulations concerning voting with the assistance of a companion or presiding officer, personation and the right to vote, the presiding officer shall permit an elector, who applies to vote and declares his or her name and address, to vote on a voting machine.

(2) Immediately before an elector is permitted 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) An elector on receiving permission to vote shall (subject to the provisions concerning voting with the assistance of a companion or presiding officer) go alone to one of the voting machines in the polling station or such one of them as he or she is directed to so go to by the presiding officer and there shall secretly record his or her preferences on the ballot paper displayed on the voting machine and shall then cast his or her vote by pressing the cast 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 has failed to cast, in accordance with subsection (3), his or her vote and has left the polling station and the presiding officer, accordingly, has reason to believe that the voting machine concerned is still open, the presiding officer shall verify, remotely (by means of the control unit), whether that is the case and, if the machine is open, shall de-activate it. Where an elector fails to leave a voting machine within a reasonable time, the provisions of section 106(1) of the Act of 1992, Rule 67 of the Second Schedule to the Act of 1997 or Article 68 of the Regulations of 1995, as appropriate, shall apply and, where, in such circumstances, the voting machine is still open, the presiding officer shall de-activate it.

(5) In a case to which subsection (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 voting machines in the polling station and, as respects each such machine, the number of electors who voted on it and the number of instances arising under subsection (4) with respect to each such machine.

11. Duties of presiding officer at close of poll.

11. —(1) At the time fixed for the close of the poll the presiding officer shall take steps to ensure that no further electors are admitted to the polling station, but any elector on the premises at that time shall, subject to the provisions of the relevant Act or Regulations and this Part, 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 section 8 on each voting machine in the polling station has not been interfered with, shall cause a statement showing a list of the candidates on the ballot paper at the election or two questions on the ballot paper in the case of a referendum 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 section 9(1) and subsection (2) to the returning officer or 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 electors used,

(b) a statement prepared in accordance with section 104(2) of the Act of 1992 as applied to the relevant election or referendum by the Schedules to this Act, Rule 65 of the Second Schedule to the Act of 1997 or Article 66 of the Regulations of 1995,

(c) any authorisations given by the returning officer or local returning officer 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 election or referendum,

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

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

(5) If, for whatever reason, the voting machine concerned fails to produce the printed statement referred to in subsection (2), the information that would have been recorded in that statement, being information displayed on the voting machine's display screen, together with any other information specified by the form to be entered on it, shall be entered on a form directed by the Minister for the purposes of this subsection. The form shall be signed by the presiding officer and witnessed by an agent or other person in the polling station.

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

12. —(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 returning officer or local returning officer's staff, not earlier than one hour before the conclusion of voting on polling day.

(2) The ballot papers extracted by the returning officer or 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 modified and applied to the Act of 1993 or Act of 1994) or Rule 39 of the Second Schedule to the Act of 1997 or Article 41 of the Regulations of 1995 as applied to this Part by a Schedule to this Act.

(3) The returning officer or 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 48 of the Act of 1993, section 34 of the Act of 1994, Rule 82(2) to (4) of the Second Schedule to the Act of 1997 and Article 80(2) to (5) of the Regulations of 1995, as appropriate, shall apply to ballot papers dealt with under this section.