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15 2004

Electoral (Amendment) Act 2004

PART 2

Vote Recording and Electronic Vote Counting

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.

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.

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.

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.

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 .

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.

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.

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.

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.

(5) The returning officer or local returning officer shall reject any of the ballot papers that are invalid and before commencing the entry of ballot paper preferences, the returning officer or 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 section 8 , to demonstrate to such persons as are present that no votes are cast or recorded on the voting machine. The returning officer or local returning officer shall cause a printed statement to be produced by the voting machine showing the names of the 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 returning officer or 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 or preferences has or have been entered on the said ballot paper from each postal or special voter ballot paper, the returning officer or local returning officer shall then press the cast vote button on the voting machine.

(6) On completion of the entry of the votes in the voting machine, the returning officer or local returning officer shall cause a printed statement to be produced by the machine showing the list of candidates on the ballot paper at the election or the questions on the ballot paper in the case of a referendum and the number of votes recorded.

(7) The statements produced under subsections (5) and (6) shall be signed by the returning officer or 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 returning officer or 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 section 13 .

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

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

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

and shall mark on each packet particulars of its contents, the date of the polling day at the election or referendum and the constituency or local electoral area to which it relates and such packets shall be retained and accounted for together with other election or referendum documents specified in the relevant Act or Regulations.

(10) If, for whatever reason, the voting machine concerned fails to produce the printed statement referred to in subsection (5) or (6), 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 returning officer or local returning officer and witnessed by an agent or if no agent is present by another person present.

Preliminary proceedings and time for counting of votes.

13. —(1) Following the closing of the poll, the returning officer or local returning officer, at the place appointed under the relevant Act or Regulations, 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 sections 11 and 12 are received at the count centre. If circumstances as aforesaid arise, the returning officer or 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 returning officer or local returning officer in the presence of the agents shall insert each cartridge or disc in an apparatus provided in the constituency or local electoral area concerned for the purpose of counting the votes entered in the voting machines in the various polling stations in that constituency or local electoral area (in this Part referred to as a “constituency vote counting machine”).

(3) The returning officer or 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 sections 11 and 12 in respect of each machine and shall prepare a statement showing the result of this comparison in respect of all the voting machines. The returning officer or 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 or local electoral area and are dealt with in accordance with subsection (2), the returning officer or 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 the provisions of the relevant Act or Regulations and this Act.

(5) Where more than one poll, including a referendum, is held on the same polling day, the provisions of section 165 of the Act of 1992 as modified by Part 3 of the Act of 2001 shall apply.

Further application of certain provisions of relevant enactments.

14. —(1) Without prejudice to section 12 (4), in the case of a European election, Part XI of the Second Schedule to the Act of 1997 (other than paragraphs (2) to (4) of Rule 82 and Rule 89) shall apply to the counting of votes under this Act. Any reference in the Act of 1997 to a ballot paper or papers 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 that Part XI, as applied to this Act, being performed by the returning officer or local returning officer shall be construed as a reference to the performance of those functions by electronic methods.

(3) Rule 83 of the Second Schedule to the Act of 1997, as so applied, shall have effect as if the reference in that Rule to Rule 79 were a reference to section 13 of this Act and the words “, rejecting any that are invalid,” were deleted.

(4) Without prejudice to section 12 (4), in the case of a local election, Part XIII of the Regulations of 1995 (other than sub-articles (2) to (5) of Article 80 and Article 87) shall apply to the counting of votes under this Act. Any reference in that Part XIII to a ballot 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.

(5) Any reference to the functions referred to in that Part XIII, as applied to this Act, being performed by the returning officer shall be construed as a reference to the performance of those functions by electronic methods.

(6) Article 81 of the Regulations of 1995, as so applied, shall have effect as if the reference in that Article to Article 76 were a reference to section 13 of this Act and the words “, rejecting any that are invalid,” were deleted.

(7) Without prejudice to section 12 (4), in the case of a referendum, 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 Act. Any reference in that Part III to a ballot paper or papers 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.

(8) Any reference to the functions referred to in that Part III, as applied to this Act, being performed by the returning officer or local returning officer shall be construed as a reference to the performance of those functions by electronic methods.

(9) Section 35 of the Act of 1994, as so applied, shall have effect as if the words “ section 13 of the Electoral (Amendment) Act 2004” were substituted for the words “section 114 of the Act of 1992 (as applied by section 33)” and the words “, rejecting any that are invalid,” were deleted.

(10) Without prejudice to section 12 (4), in the case of a presidential election, Part IV of the Act of 1993 (other than sections 48 and 52) shall apply to the counting of votes under this Act. Any reference in that Part IV to a ballot paper shall be construed as a reference to a vote cast on a voting machine or, in the case of postal or special voters ballot papers, a vote entered in a voting machine.

(11) Any reference to the functions referred to in that Part IV, as applied to this Act, being performed by the local returning officer or returning officer shall be construed as a reference to the performance of those functions by electronic methods.

(12) Section 54 of the Act of 1993, as so applied, shall have effect as if the words “ section 13 of the Electoral (Amendment) Act 2004” were substituted for the words “section 114 of the Act of 1992 (as applied by section 47)” and the words “, rejecting any that are invalid,” were deleted.

Election petitions.

15. —Part V of the Act of 1993, Part IV of the Act of 1994, Part XV of the Second Schedule to the Act of 1997 or the Local Elections (Petitions and Disqualifications) Act 1974 , as appropriate, shall apply to voting and vote counting under this Part as modified by section 16 and the relevant Schedule to this Act.

Modification of Local Elections (Petitions and Disqualifications) Act 1974 in its application for purposes of Act.

16. The Local Elections (Petitions and Disqualifications) Act 1974 , in its application to voting and vote counting under this Act, shall have effect as if the following section were substituted for section 8:

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

(a) that all the votes cast at the election in a local electoral area shall be counted afresh, or

(b) that all the votes so cast or recorded in cartridges or discs in particular voting machines shall be so counted,

and where the court so orders, the provisions of this section shall have effect.

(2) 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 preferences recorded for each vote cast at the poll at the election, including the vote number referred to in section 13 of the Electoral (Amendment) Act 2004 and a separate record of each vote cast at the election, showing the preferences recorded on it and the vote number referred to in that section 13 and where applicable, the number at each count at which the vote was either transferred to the next available preference recorded on it or became a non-transferable vote not effective.

(3) Votes to which an order under this section relates shall be counted afresh under the direction of the court in accordance with Part XIII of the Regulations of 1995 as modified by Schedule 2 to the Electoral (Amendment) Act 2004 but subject to subsections (4), (5) and (6) of this section and to such modifications (if any) as the court considers necessary.

(4) 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 under section 13 of the Electoral (Amendment) Act 2004.

(5) 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 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.

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

(7) The costs of giving effect to an order under this section shall be paid by the local authority concerned.”.