Re: [E-voting] Legal/Constitutional Opinions on eVoting (was: Electronic Voting in the Dáil Yesterday)

Aengus Lawlor aengusl at eircom.net
Fri Dec 2 03:30:53 GMT 2005


On Thursday, December 01, 2005 9:35 PM [EDT],
Adrian Colley <aecolley at spamcop.net> wrote:

> On Thu, Dec 01, 2005 at 12:12:35PM +0000, Keith Martin wrote:
>> I'm also told that in one of Labour's submissions to the CEV, it was
>> argued that eVoting was unconstitutional.  It wasn't in the main
>> "Labour Party" one, but was in one of the ones submitted by Labour
>> Party representatives or members - I just can't remember which!
>
> My favourite argument is that the Constitution requires that elections
> for President and for the Dáil must be "by secret ballot" (articles
> 12.2.3° and 16.1.4°), and an electronic vote record isn't a ballot.
> My copy of the Concise Oxford English Dictionary defines "ballot" as:
>
> noun: 1 a process of voting, in writing and usually secret.
>       2 the total of votes recorded in a ballot.
>       3 the drawing of lots.
>       4 a paper or ticket etc. used in voting.
> verb: (balloted, balloting)
>       1 (intransitive) (usually followed by "for")
>         a. hold a ballot, give a vote.
>         b. draw lots for precedence etc.
>       2 (transitive) take a ballot of ("the union balloted its
> members"). also: ballot-box: a sealed box into which voters put
> completed ballot-papers. also: ballot-paper: a slip of paper used to
> register a vote.
>
> The Electoral (Amendment) Acts 2001 and 2004 define "ballot paper" as
> including an electronic vote record, but that doesn't affect
> interpretation of the Constitution.
>
> Oddly, a referendum under article 47 (e.g. for amendments to the
> Constitution) doesn't have to be by ballot, or even in secret.
> The referendum in 2002 was still illegal, but for a different reason:
> the law wasn't properly changed to permit e-voting in a referendum
> until 2004.

The Supreme Court are a bit like Humpty Dumpty when it comes to interpreting
the Constitution - words mean whatever they want them to mean. Don't forget
that Article 16 grants every citizen, without exception, the right to vote -
including those who live outside the jurisdiction. Article 12 is also pretty
explicit about Presidents being elected, and the right of every citizen to
vote in that election. There isn't any provision for a president to be
appointed without an election - even if there is only one candidate! Is it
really an election if nobody votes? Article 18 also has some very impressive
language about the makeup of Seanad Éireann that is more or less ignored.

While all of these examples may seem like trivialities, the point is that
the plain language of the Constitution can and will be ignored if it's too
inconvenient to implement it as written. So don't expect dictionary
definitions to play any significant role in determining the
constitutionality or otherwise of Electronic Voting.

Aengus





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