McMahon v Attorney General

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1972
• Docket Number: [1970. No. 168 P.]
• Date: 01 January 1972

Supreme Court

[1970. No. 168 P.]

McMahon v. Attorney General

NIALL McMAHON

Plaintiff

and

THE ATTORNEY GENERAL

Defendant.

Constitution - Statute - Validity - Elections - "Secret ballot" - Ballot paper and counterfoil bearing the same serial number — Counterfoil also bearing the number of the voter on the register of electors - Electoral Act, 1923 (No. 12), ss. 21, 24, 26and Schedules 3-5 - Electoral Act, 1963 (No. 19), s. 16 -Constitution of Ireland, 1937, Articles 16, 34, 50.

Plenary Summons.

The plaintiff was a citizen of Ireland but he was not registered as an elector on the register of electors. He issued a plenary summons against the defendant and claimed a declaration that certain provisions of the Electoral Acts, 1923 and 1963, were inconsistent with and repugnant to the Constitution of Ireland, 1937.

Section 26 of the Electoral Act, 1923 (as enacted originally) provided at sub-s. 2 that each ballot paper should have a number printed on the back and should have attached a counterfoil with the same number printed on the face; and the section provided at sub-s. 3 that at the time of voting the ballot paper should be marked on both sides with an official mark, and delivered to the voter within the polling station, and that the number of each voter on the register of electors should be marked on the counterfoil. Section 24 of the Act of 1923 enacts that:— "It shall be the duty of the returning officer for each constituency to conduct every Dáil election in that constituency according to the rules contained in the Third, Fourth and Fifth Schedules to this Act, and such further rules (not being inconsistent with the rules aforesaid) as shall from time to time be made by the Minister for Local Government."Rule 22 in Part I of the Fifth Schedule to the Act of 1923 states that, immediately before a ballot paper is delivered to an elector, the number of such elector on the register of electors shall be marked on the counterfoil. Section 26 of the Act of 1923, as originally enacted, was replaced (see s. 16, sub-s. 1, of the Electoral Act, 1963) by a new s. 26 which enacts that votes at a Dáil election shall be given by ballot and that the ballot of each voter shall consist of a paper "in form 5A in Part III of the Fifth Schedule to this Act". Section 16, sub-s. 2, of the Act of 1963 inserted the new form 5A in Part III of the Fifth Schedule to the Act of 1923 and enacted that the returning officer should comply with the directions appearing on the new form 5A. The fifth direction on form 5A states that:— "The back of each ballot paper shall be numbered consecutively and the front of the counterfoil attached to it shall bear the same number. The number on the back of the ballot paper shall be printed in the smallest characters compatible with legibility." Rule 38 in Part I of the Fifth Schedule to the Act of 1923 provides for the inspection of rejected ballot papers which are in the custody of the clerk of the Dáil; and rule 39 in the same Part I provides for the opening of sealed packets of counterfoils and for the inspection of counted ballot papers in the custody of the clerk of the Dáil.

Form 5A in Part III of the Fifth Schedule to the Act of 1923 is copied on the next two pages.

Special provisions governing the method of voting by blind, incapacitated and illiterate persons are contained in the revised version of rule 24 in Part I of the Fifth Schedule to the Act of 1923 as provided by s. 27 of the Act of 1963. Rule 24 enables a companion, chosen by an incapacitated elector, to mark such elector's ballot paper and to place it in the ballot box on behalf of such elector. The rule applies where an elector satisfies the presiding officer that the elector's sight is so impaired or that he is otherwise so physically incapacitated or that he is so illiterate that he is unable to vote without assistance. The presiding officer may, and, if requested by an agent of a candidate shall, require the elector to establish his incapacity by oath or affirmation. The rule enables the presiding officer to question the chosen companion for the purpose of establishing that he is at least 16 years old, that he has not marked as companion more than one ballot paper at the election, and that he is not a candidate or an agent of a candidate at the election. In certain circumstances the presiding officer is empowered to cause the vote of such elector to be marked on his ballot paper as he directs, and to place the ballot paper in the ballot box in the presence of the agents of the candidates only; and for this purpose the presiding officer may assist the incapacitated elector by reading out in full from the ballot paper the particulars relating to each candidate.

"5A

FORM OF BALLOT PAPER.

(Fornt of Paper)

Counterfoil No..........		Marcáil ord do rogha sna spáis seo síos.	Marc Oifigiúil.
		Mark order of preference in spaces below.	Official Mark.
Voter's No. on register.			DOYLE — WORKERS PARTY. (James Doyle, of 10 High Street, Builder.)
Letter.	No.		LYNCH—DEMOCRATS. (Jane Ellen Lynch, of 12 Main Street, Grocer.)
			O'BRIAIN—CUMANN NA SAORANACH. (Séamus O'Briain, ó 10 An tSráid Ard, Oide Scoile.)
			O'BRIEN, EAMON (Barrister) —NON-PARTY. (Eamon O'Brien, of 22 Wellclose Place, Barrister.)
			O'BRIEN, EAMON (Solicitor)— YOUNG IRELAND. (Eamon O'Brien, of 102 Eaton Brae, Ranelagh, Solicitor.)
			O'CONNOR—NATIONAL LEAGUE. (Charles O'Connor, of 7 Green Street, Gentleman.)
			THOMPSON—FARMERS PARTY. (William Henry Thompson, of Dereen Park, Farmer.)

TREORACHA.	INSTRUCTIONS.
I. Féach chuige go bhfuil an marc oifigiúil ar an bpáipéar.	I. See that the official mark is on the paper.
II. Scríobh an figiúr 1 le hais ainm an chéad iarrthóra is rogha leat, an figiúr 2 le hais do dhara rogha, agus mar sin de.	II. Write 1 beside the name of the candidate of your first choice, 2 beside your second choice, and so on.

III. Fill an páirpéar ionas nach bhfeicfear do vóta. Tais peáin cúl an pháipéir don oifigeach ceannais, agus cuir sa bhosca ballóide é.

III. Fold the paper to conceal your vote. Show the back of the paper to the presiding officer and put it in the ballot box.

(Back of Paper)

No............................

Election for Constituency of ………………………………

DIRECTIONS.

(1) Each ballot paper shall contain a list of the candidates as described in their respective nomination papers, arranged alphabetically in the order of their surnames or if there are two or more candidates with the same surnames, of their other names, or if their other names are the same. in the order of their occupations.

(2) The surname of each candidate and the name of his political party, if any, shall be printed in large characters and his full name, address and occupation, if any, as appearing in his nomination paper, shall be printed in small characters.

(3) Whenever the surnames of two or more candidates are the same there shall also be printed in large characters the other names of such candidates and so much of the description of each candidate as appearing in their respective nomination papers, as will, in the opinion of the returning officer, effectively distinguish such candidate.

(4) The list of candidates shall be arranged either in one continuous column or in two or more columns in such manner (without departing from the alphabetical order) as in the opinion of the returning officer is best for marking and counting.

(5) The back of each ballot paper shall be numbered consecutively and the front of the counterfoil attached to it shall bear the same number. The number on the back of the ballot paper shall be printed in the smallest characters compatible with legibility.

(6) Nothing is to appear on the ballot paper except in accordance with these directions."

Section 1 of Article 16 of the Constitution of Ireland, 1937, provides:—

"1 Every citizen without distinction of sex who has reached the age of eighteen years, and who is not placed under disability or incapacity by this Constitution or by law, shall be eligible for membership of Dáil Éireann éireann.

2 Every citizen without distinction of sex who has reached the age of eighteen years who is not disqualified by law and complies with the provisions of the law relating to the election of members of Dáil Éireann éireann, shall have the right to vote at an election for members of Dáil Éireann éireann.

3 No law shall be enacted placing any citizen under disability or incapacity for membership of Dáil Éireann éireann on the ground of sex or disqualifying any citizen from voting at an election for members of Dáil Éireann éireann on that ground.

4 No voter may exercise more than one vote at an election for Dáil Éireann éireann, and the voting shall be by secret ballot."

At the date of the hearing the minimum age, mentioned in sub-ss. 1 and 2, was twenty-one years: see the Fourth Amendment of the Constitution Act, 1972.

Section 2, sub-ss. 5 and 6, of Article 16 of the Constitution provides:—

"5 The members shall be elected on the system of proportional representation by means of the single transferable vote.

6 No law shall be enacted whereby the number of members to be returned for any constituency shall be less than three."

Section 17 of the Act of 1923 enacts that a contested Dáil election shall be according to the principle of proportional representation, each elector having one transferable vote. The section provides that the expression"transferable vote" means a vote capable of being given so as to indicate the voter's preference for the candidates in order, and capable of being transferred to the next choice when the vote is not required to give a prior choice the necessary quota of votes, or when, owing to the deficiency in the number of votes given for a prior choice, that choice is eliminated from the list of candidates. The...