[E-voting] [cathy_flanagan@labour.ie: E-VOTING BILL IS UNCONSTITUTIONAL]

Margaret McGaley Margaret.McGaley at redbrick.dcu.ie
Thu Mar 25 12:35:34 GMT 2004

----- Forwarded message from Cathy Flanagan <cathy_flanagan at labour.ie> -----

From: "Cathy Flanagan" <cathy_flanagan at labour.ie>
To: "Margaret McGaley" <Margaret.McGaley at redbrick.dcu.ie>
Date: Thu, 25 Mar 2004 12:25:17 -0000

                  Labour Party Spokesperson on the Environment
                            Thursday, 25 March, 2004


The  new  Electoral  Bill  is  bristling with unconstitutionality and it makes a mockery of the E-Voting Commission and of electoral law.

The  Bill  purports  to  solve  the  constitutional  problem  identified  by the Government's  initial  bungled  attempt  to introduce e voting for the local and Euro  elections  without  primary  legislation.   However it does nothing of the kind.

The  Bill  gives general discretionary power to the Minister for the Environment to  make  regulations dealing with crucial matters, which should properly be set out in primary legislation.

The  Minister,  who  is  also  the  Fianna  Fail  Director  of Elections, is now introducing  legislation  to  give  himself  critical  powers  to decide how the election is to be conducted.  This should not be tolerated in any democracy and, if enacted, will undermine the independence of our electoral system.

The  most  fundamental  power  is  the power to determine by regulations whether e-voting  would  be  used and if so to what extent.  The Bill continues to leave this  entirely  in  the hands of the Minister without any adequate parliamentary
control  ?  see  section  5(3).   The only test is where "the public interest so
requires"  which  is  totally  meaningless,  as it is left to the Minister's own discretion.

The Minister will also be given a power to amend the form of the ballot paper by regulations  (under  section  30,  when  read  in  conjunction with the existing Electoral  Acts)  ?  again  a  matter  that should for constitutional reasons be spelled out in the Bill.

The  Bill leaves intact the existing discretionary power of the Minister to make regulations amending electoral law, a power which is constitutionally infirm, as has been demonstrated in the recent Supreme Court decision on Carrickmines. The  meaningless nature of the safeguards in the Bill is highlighted by what may well  be  an unconstitutional attempt to oust the jurisdiction of the Courts, by provisions  which state that no action can be taken to question an e-vote in the event  that  some  of  the  safeguards  are disregarded.  See ss 9(2), 11(5) and
12(10).   Even  though  possibly comparable provisions exist in current law, the
Bill  was  supposed  to solve all constitutional problems, which it clearly does not.

Section  29(4)  is  also  clearly  unconstitutional in that it allows a detailed breakdown  of  votes to be published in areas where there were so few votes that the privacy of voters would thereby be infringed.  What the section says is that in  such  a  case,  the returning officer "may" refuse to publish the data ? not "shall"  refuse ? and therefore clearly indicates that the returning officer may
decide  to  publish  in  any  event.   We  are  also  of  the  view  that  it is
constitutionally  improper  to  leave  the  matter up to the returning officer's discretion ? there should be an objective threshold for non-publication.

Bizarrely  the  Bill  repeals the existing provision which allows extension of e voting   to   Seanad  elections  and  Údarás  na  Gaeltachta  elections  without replacement ? thereby creating a new anomaly.

And  the  Bill  fails  to  meet  even  the  most  basic requirement advocated by supporters  of e voting, in that it fails to eliminate the random element.  This is  clear  from  for  example  the  provisions that a recount cannot disturb the original mix of votes ? see e.g. s 16(4) and (5).

The bungled and belatedly rushed handling of this issue means that the Bill will have become law before the e voting commission reports ? thereby rendering their activity a sham since any recommendations as to safeguards etc cannot be enacted in time for the 2004 local and Euro elections.

The  drafting of the Bill is a nightmare and it rips up the whole electoral code so  carefully  consolidated  over  the  past  12 years.  The electoral code will become a thing of shreds and patches if this rag bag of a bill is enacted.

-----Original Message-----
From: Margaret McGaley [mailto:Margaret.McGaley at redbrick.dcu.ie] 
Sent: 19 February 2004 19:13
To: Cathy Flanagan
Subject: Re: FW: e-voting:dail debate

On Tue, Feb 17, 2004 at 05:34:12PM -0000, Cathy Flanagan wrote:
> I can fax the government's amendment to the Private Members Motion if you
> need it

Hi Cathy,

I'd like a copy of the original motion, and one of the ammendment. Would it be
possible for you to e-mail them to me in some way? If not, I could organise to
receive a fax tomorrow.


Margaret McGaley
Margaret.McGaley at redbrick.dcu.ie

----- End forwarded message -----

Margaret McGaley
Margaret.McGaley at redbrick.dcu.ie

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