The Gazette 1971

UNREPORTED IRISH CASES

ation or other corrupt practices were proved at an election : it would be necessary to declare the election void, and hold another election. But when speaking of "secret ballot " it must be stressed that it is "secret to the voter". It ceases to be a secret if it is disclosed. The Constitution, therefore, .requires that nothing should be done to violate that secrecy. If personation is proved at a particular polling station, then a re-poll can take place limited to that station. American decisions on the secrecy of the ballot considered. Accordingly the judgment of Mr. Justice Pringle should be affirmed. Mr. Justice Walsh and Mr. Justice Budd agreed with the judgment of the Chief Justice. Mr. Justice Fitzgerald, dissenting, said that, while a secret may be knowledge in the possession of one per- son only, it may equally well be knowledge shared by a limited and predetermined number of persons. The fact that in the case of blind and illiterate voters the knowledge has to be shared disposes of the fact that the word "secret" means that the knowledge is to be confined to the voter alone. The argument that the incapacitated voter has waived his right is not accept- able. Despite the fact that there have been fifteen General Elections and many by-elections since 1923 the system has so far not been changed. The plaintiff's claim is 'based on a fanciful apprehension of a risk so minimal as to be unworthy of support. The possibility that all elections and by-elections since 1923 were unconstitu- tional is here mentioned. Mr. Justice McLoughlin, dissenting, said that the plaintiff objected to the present system of voting on principle, but had not suffered any serious consequences himself as a result of it. If Article 16 of the Constitu- tion is taken as a whole, with its provisions about com- plying with the electoral laws, and of members being elected on the system of proportional representation by means of the single transferable vote, then it is obvious that the election returns could only ensure secrecy as far as it was practically possible to do so—perfection cannot be achieved. Theoretically there is no absolute secrecy for an elec- tor who has expressed his choice on the ballot paper, as someone looking over his shoulder may see it. Once the voter has cast his vote in the ballot box, there are elab- orate precautions provided to ensure that as far as possible his vote will remain secret. Rules 38 and 39 under the 1923 Act give authority to the Dáil to make an order as to the inspection of ballot papers, after the Clerk of the Dáil has kept them for a minimum of one year. The Dáil has no constitu- tional authority to issue such an order for inspection, as it is solely within the province of the judiciary to do so. McLoughlin J. did not, however, think that it was any part of the function of the Court to obstruct the administration of the law relating to elections by forg- ing from the iron of the Constitution shackles designed to prevent a happening which in the light of experience and of reason, cannot ever happen. If ballot papers are placed in the unnumbered ballot boxes as to be unidentifiable there is then clearly abso- lute secrecy, but not only of valid votes, but also of

SECRECY OF ELECTORAL BALLOT UPHELD (McMahon v Attorney-General) The Chief Justice delivering the majority judgment of the Supreme Court, first considered the rules for con- duct of elections contained in the Electoral Acts of 1923 and of 1963. The Chief Justice then stated that the marking of the voter's number on the counterfoil which already bears the number of the voter's ballot paper, makes it possible to trace the voter's ballot paper, and thus to discover how he has cast his vote. The rules for the conduct of elections contained in Part 1 of the Fifth Schedule to the Electoral Act, 1923, as amended by the 1963 Act were fully considered. Mr. Justice Pringle in the High Court was of opinion that the provision for marking the elector's number in the Register of Electors on the counterfoil of the ballot paper violates Article 16 (1) (4) of the Constitution (as to the secrecy of the ballot) and he accordingly granted a declaration of unconstitutionality. The Attorney- General contended that the Oireachtas had to make a choice between inviolable secrecy and abandoning any attempt to identify persons not entitled to vote. It was also contended that the personated vote diminishes the value of the bona fide elector. It was contended that Article 16 (1) (4) of the present Constitution is similar in terms to Article 14 of the Constitution of 1922, which had not enjoined absolute secrecy in the Electoral Act, 1923. But the present Constitution of Ireland does not offer any presumption of constitutionality to the statute roll of Saorstat Eireann. It was contended that the Electoral Act, 1923, was to a large extent a repeti- tion of the Ballot Act, 1872, particularly Part 1 dealing with the conduct of elections. Before 1872 there was absolute secrecy in the State of South Australia, whereas the present system of limited secrecy prevailed in Victoria, and this was eventually adopted. The first part of Article 16 (1) (4) of the Constitution reads : " No voter may exercise more than one ir>te at an election for Dáil Eireann". The purpose here is merely to prevent the plurality of votes. The second part of Article 16 (1) (4) reads : "and voting shall be by secret ballot". This secrecy has concern for maintaining the purity of the elections, because it protects the voter from disclosure as to how he has voted, and thus allows him to express his vote truly and independently, without fear of pressure or intimidation. The real bar- rier to personation is Part III of the Electoral Abuses Act, 1923, which authorises attendance of personatión agents at polling stations. The vigilance of these agents is the strongest deterrent to personation. The pattern of the Ballot Act, 1872, was accepted uncritically in 1923. The framers of that Act had con- sciously rejected a system of absolute secrecy for one of limited secrecy. Limited secrecy is not secrecy : it is something less than secrecy. The fact that the few blind, incapacitated and illiterate persons are by natural pri- vation unable to vote secretly is not a valid reason for attempting to curtail the exercise of that right by the many. The Report of the Joint Committee on Electoral Law (1962) was not in favour of changing the system of limited secrecy on the ground that if widespread person-

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