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28 1993

PRESIDENTIAL ELECTIONS ACT, 1993

PART IV

The Counting of the Votes

Interpretation (Part IV).

45. —In this Part—

continuing candidate” means any candidate not deemed to be elected and not excluded;

count” means—

(a) all the operations involved in the counting of the first preferences recorded for candidates, or

(b) all the operations involved in the transfer of the votes of an excluded candidate, or

(c) all the operations involved in the transfer of the votes of 2 or more candidates excluded together in accordance with section 51 (2);

deemed to be elected” means deemed to be elected for the purpose of the counting of the votes but without prejudice to the declaration of the result of the poll;

non-transferable paper” means a ballot paper on which no second or subsequent preference is recorded for a continuing candidate, provided that a paper shall be deemed to have become a non-transferable paper whenever—

(a) the names of 2 or more candidates (whether continuing candidates or not) are marked with marks which, in the opinion of the local returning officer, indicate the same order of preference and are next in order of preference, or

(b) the name of the candidate next in order of preference (whether a continuing candidate or not) is marked with a mark which, in the opinion of the local returning officer, does not follow consecutively after some other mark on the ballot paper, or with 2 or more marks indicating different orders of preference, or

(c) it is void for uncertainty;

original vote”, in relation to a candidate, means a vote derived from a ballot paper on which a first preference is recorded for the candidate;

preference” shall be interpreted as follows—

(a) “first preference” means any mark which, in the opinion of the local returning officer, clearly indicates a first preference,

second preference” means any mark which, in the opinion of the local returning officer, clearly indicates a second preference standing in succession to a first preference,

third preference” means any mark which, in the opinion of the local returning officer, clearly indicates a third preference standing in succession to a second preference, and so on,

(b) “next available preference” means a preference which, in the opinion of the local returning officer, is a second or subsequent preference recorded in consecutive order for a continuing candidate, the preferences next in order on the ballot paper for excluded candidates being disregarded;

transferable paper” means a ballot paper on which, following a first preference, a second or subsequent preference is recorded in consecutive numerical order for a continuing candidate;

transferred vote”, in relation to a candidate, means a vote derived from a ballot paper on which a second or subsequent preference is recorded for that candidate.

Ascertainment of result of the election.

46. —(1) The presidential returning officer shall appoint a place at which he will ascertain the result of the voting at the election concerned and shall—

(a) at the place so appointed provide suitable accommodation and all necessary furniture and equipment,

(b) not less than 4 days (disregarding any excluded day) before the polling day, give written notice to each candidate of the time and place at which he will proceed to ascertain the result of the voting and of the number of agents that may be appointed to attend the proceedings on behalf of each candidate, and

(c) give the agents of the candidates all such reasonable facilities for overseeing the proceedings and all such information as is consistent with the orderly conduct of the proceedings and the performance of his duties.

(2) The presidential returning officer, his assistants and clerks, members of the Garda Síochána on duty, the candidates and the agents of the candidates duly appointed for the purpose under this Act may be present at the ascertainment of the result of the voting and no other person shall be present without the permission of the presidential returning officer.

(3) The presidential returning officer shall, so far as practicable, proceed continuously with the ascertainment of the result of the voting, except during time for refreshment and (except so far as he and the candidates otherwise agree) the period between 11 p.m. and 9 a.m.

Arrangements in relation to the counting of the votes.

47. —The provisions of sections 112 to 117 of the Act of 1992 shall, subject to the modifications specified in section 3 (3), apply and have effect in relation to the arrangements for the counting of votes by the local returning officer in each constituency at an election.

Invalid ballot papers.

48. —(1) A ballot paper—

(a) which does not bear the official mark,

(b) on which the figure 1 standing alone, or the word “one” or any other mark which, in the opinion of the local returning officer, clearly indicates a first preference, is not placed at all or is not so placed as to indicate a first preference for some candidate,

(c) on which the figure 1 standing alone indicating a first preference, or the word “one” or any other mark which, in the opinion of the local returning officer, clearly indicates a first preference, is set opposite the name of more than one candidate, or

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

shall be invalid and not counted, but the ballot paper shall not be invalid by reason only of its bearing the words “one”, “two”, “three” (and so on) or any other mark which, in the opinion of the local returning officer, clearly indicates a preference or preferences.

(2) The local returning officer shall endorse the word “rejected” on any ballot paper which under this section is not counted. The local returning officer shall prepare a statement in such form as may be directed by the Minister showing the number of ballot papers rejected under each of the paragraphs (a) to (d) of subsection (1) and shall, on request, allow any candidate or agent of a candidate present to copy such statement.

(3) The local returning officer may endorse on any ballot paper which he does not reject as invalid an indication of his decision on it in relation to its validity without, however, interfering with any mark placed by the elector on the ballot paper.

(4) The decision of the local returning officer, whether expressed or implied by his acts, on any question which arises in relation to any ballot paper or transfer of votes shall be final, subject only to reversal on a petition questioning the election.

First count.

49. —(1) After the ballot papers have been mixed in accordance with section 114 of the Act of 1992 (as applied by section 47 ) the local returning officer shall, rejecting any that are invalid, arrange them in parcels according to the first preferences recorded for each candidate.

(2) The local returning officer shall then count the ballot papers in each parcel and credit each candidate with a number of votes equal to the number of valid ballot papers on which a first preference has been recorded for such candidate and shall ascertain the total number of valid ballot papers for the constituency concerned and shall forthwith notify the presidential returning officer, in such manner as the latter may direct, of the number of votes credited to each candidate and the number of valid ballot papers and a reference in this Part to a ballot paper or a paper of a candidate is a reference to a ballot paper in respect of which a candidate has been credited with a vote under this section or section 51 .

The quota.

50. —(1) The presidential returning officer, on receipt from every local returning officer of a notification under section 49 , shall ascertain from the notifications the total number of votes credited to each candidate and the total number of valid ballot papers.

(2) The presidential returning officer shall then divide the total number of valid ballot papers by 2 and the result increased by one, any fractional remainder being disregarded, shall be the number of votes sufficient to secure the election of a candidate. This number is referred to in this Act as “the quota”.

(3) Where at the end of any count the number of votes credited to a candidate is equal to or greater than the quota, that candidate shall be deemed to be elected and no further transfer of votes shall be made.

(4) Where at the end of any count the number of votes credited to some one continuing candidate exceeds the total of all the votes credited to the other continuing candidates, that candidate shall be deemed to be elected and no further transfer of votes shall be made.

Exclusion of candidate.

51. —(1) Where, at the end of any count, no candidate has reached the quota and no candidate can be deemed to be elected under section 50 (4), the presidential returning officer shall direct the local returning officers to exclude the candidate credited with the lowest number of votes and transfer the candidate's ballot papers in accordance with the next available preferences recorded thereon for continuing candidates.

(2) Where the total of the votes of the 2 or more candidates credited with the lowest number of votes is less than the number of votes credited to the candidate credited with the next highest number of votes, the presidential returning officer shall direct under subsection (1) the exclusion of such 2 or more candidates and the transfer of their papers in one operation.

(3) (a) If, where a candidate falls to be excluded under this section, 2 or more candidates each stand credited with the same number of votes being the lowest number of votes, regard shall be had to the number of original votes credited to each of those candidates, and the candidate to whom the lowest number of original votes was credited shall be excluded and, where the numbers of the original votes so credited are equal, regard shall be had to the total numbers of votes credited to those candidates at the first count at which they had unequal numbers of votes and the candidate to whom the lowest number of votes was credited at that count shall be excluded and, where the numbers of votes credited to those candidates were equal at all counts, the presidential returning officer shall exclude the candidate whose name is determined by lot.

(b) For the purposes of paragraph (a), where the names concerned are written on similar slips of paper and the slips are folded so as to prevent identification and mixed and drawn at random, the name shall be deemed, in the order in which the slip bearing the name is drawn, to have been determined by lot.

(4) On being so directed by the presidential returning officer pursuant to this section, each local returning officer shall—

(a) exclude the candidate or candidates specified in the direction, examine all the papers of that candidate or those candidates, as the case may be, and arrange the transferable papers in sub-parcels according to the next available preference recorded on each paper for continuing candidates,

(b) transfer each such sub-parcel to the candidate for whom the next available preferences are recorded in the papers concerned and place the sub-parcel on top of the parcel of papers of the candidate to whom the transfer is made,

(c) make a separate sub-parcel of the non-transferable papers and set them aside as finally dealt with, and

(d) forthwith notify the presidential returning officer, in such manner as may be directed by him, of the number of papers in the sub-parcel transferred to each continuing candidate and the number of non-transferable papers.

(5) The presidential returning officer shall ascertain from the notifications received under this section from every local returning officer the total number of papers transferred to each continuing candidate under subsection (4) and shall credit the candidate with a number of votes equal to such number.

Recount.

52. —(1) A candidate or an agent of a candidate present at the counting of the votes in a constituency may, at the conclusion of any count, request the local returning officer to re-examine and recount all or any of the ballot papers dealt with during that count and the local returning officer shall re-examine and recount such papers accordingly without making any alterations in the arrangement of the papers in the various parcels, save where such alterations may be necessary in consequence of an error discovered in the recount. Nothing in this subsection shall make it obligatory on the local returning officer to re-examine or recount the same parcel of papers more than once.

(2) The local returning officer may at his discretion recount papers either once or more often in any case in which he is not satisfied as to the accuracy of any count. The power under this subsection to recount papers shall extend to papers dealt with at any count preceding the count concerned.

(3) (a) As respects each candidate, one request (and not more) may be made by the candidate or the election agent of the candidate to the presidential returning officer during the ascertainment of the result of the voting for a complete re-examination and recount of all parcels of ballot papers and, where such a request is made, the presidential returning officer shall (subject to paragraph (d)(ii)), cause each local returning officer to re-examine and recount the parcels of ballot papers accordingly and notify him, in such manner as he may direct, of the result of the re-examination and recount.

(b) In a re-examination and recount under paragraph (a), the number or order of ballot papers in any parcel shall not be disturbed but if an error is discovered which is, in the opinion of the presidential returning officer, a significant error likely to affect the result of the election, the presidential returning officer shall cause all the papers to be counted afresh from the point at which the error occurred.

(c) Where an error is discovered, the presidential returning officer shall, where necessary, amend any result previously announced.

(d) Nothing in this subsection shall make it obligatory on the presidential returning officer—

(i) to cause the same parcel of ballot papers to be re-examined or recounted more than once, or

(ii) to comply with a request under this subsection by a candidate or his election agent which, in the opinion of the presidential returning officer, is frivolous or vexatious.

(e) A request under this subsection may be made only at the conclusion of a count.

(4) Where a request made under subsection (3) is withdrawn by the candidate as respects whom it is made or by the election agent of the said candidate, it shall be open to the presidential returning officer to direct the local returning officers not to proceed, or proceed further with the re-examination and recount.

Report to the presidential returning officer.

53. —On the completion of the counting of the votes in a constituency, the local returning officer for the constituency shall send to the presidential returning officer, in such manner as the latter may direct, a report in writing, signed by the local returning officer, stating—

(a) the number of first preference votes credited to each candidate in the constituency,

(b) the number of ballot papers transferred to each continuing candidate following the exclusion of a candidate and the number of non-transferable papers on each such exclusion (the non-transferable papers being described in the report as “non-transferable papers not effective”), and

(c) the number of ballot papers not counted because of invalidity for each of the reasons referred to in section 48 (1).

Retention and disposal of documents.

54. —(1) On the completion of the counting of the votes in a constituency, the local returning officer for the constituency shall place in separate sealed packets—

(a) the counted ballot papers,

(b) the ballot papers not counted because of invalidity at the counting of the votes,

(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 presidential election concerned and the constituency to which they relate.

(2) The local 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 section 114 of the Act of 1992 (as applied by section 47 ), and

(c) any authorisations issued by him to electors to vote at other polling stations,

and shall mark on each packet particulars of its contents, the date of the polling day at the presidential election and the constituency to which they relate.

(3) The local returning officer shall as soon as practicable, forward to the presidential returning officer the packets referred to in subsections (1) and (2) together with the packets and statement referred to in sections 76 and 83(2) (other than paragraph (e) of that subsection) of the Act of 1992 (as applied by sections 40 and 41 , respectively).

(4) The documents sent to the presidential returning officer in pursuance of this section shall be retained by that officer for 6 months from the date of the poll at the election concerned. At the expiration of the said period, the presidential returning officer shall, unless otherwise directed by an order of the High Court or he has reason to believe that the documents may be required for a purpose referred to in section 55 (3), cause the documents to be destroyed.

Inspection of ballot papers etc.

55. —(1) No person shall be allowed to inspect any of the documents mentioned in subsection (2) except under an order of the High Court.

(2) The documents referred to in subsection (1) are—

(a) the counterfoils of the ballot papers sent to postal voters in pursuance of section 40 ,

(b) the counterfoils of the ballot papers delivered to special voters in pursuance of section 82 of the Act of 1992 (as applied by section 41 ),

(c) the documents referred to in subsections (2) and (3) of section 76 of the Act of 1992 (as applied by section 40 ), and

(d) the documents referred to in section 54 (1).

(3) An order referred to in subsection (1) shall not be made unless the court is satisfied that the inspection or production of the documents concerned is required for the purpose of instituting or maintaining a prosecution for an offence under a provision of the Act of 1992 specified in section 59 and as applied by that section or for the purpose of a petition.

(4) An order referred to in subsection (1) may be made subject to such conditions as to persons, time and place and mode of inspection or production as the court may think expedient and shall make provision to ensure that the manner in which any voter voted shall not be disclosed.

(5) Where an order is made under subsection (1) in relation to a document referred to in that subsection—

(a) the production in a court by the presidential returning officer of that document shall, until the contrary is proved, be sufficient proof that the document relates to the election specified in the order, and

(b) any endorsement appearing on any packet produced in a court by the presidential returning officer shall, until the contrary is shown, be sufficient evidence that the contents of the packet are what they are stated to be in the endorsement.

Declaration of the result of the poll.

56. —(1) On the completion of the ascertainment of the result of the voting at a presidential election, the presidential returning officer shall—

(a) determine and declare the result and the candidate deemed to be elected under section 50 shall thereupon stand elected as the President,

(b) send to the Taoiseach a certificate in the prescribed form stating the name of the candidate elected, the total number of votes credited to each candidate (whether the candidate is or is not elected), any transfer of votes made under this Part and the total number of votes credited to each candidate at the end of the count at which such transfer took place, and

(c) send to the Minister and to the person elected to be the President a copy of the certificate referred to in paragraph (b) and publish in Iris Oifigiúil a copy of the certificate.

(2) As soon as may be after the presidential returning officer has declared a candidate (in this subsection referred to as the President Elect) to have been elected to be the President, the presidential returning officer shall, in the manner directed by the Government, inform the President, the President Elect, the Taoiseach, the Chief Justice, the Chairman of the Dáil, the Chairman of the Seanad and the Secretary to the President, of the name and address of the President Elect.