STATUTORY INSTRUMENTS.

S.I. No. 237 of 2004

ELECTORAL ACT, 1992 (SECTION 165) REGULATIONS, 2004

S.I. No. 237 of 2004

ELECTORAL ACT, 1992 (SECTION 165) REGULATIONS, 2004

The Minister for the Environment, Heritage and Local Government in exercise of the powers conferred on him by sections 3 and 165 of the Electoral Act, 1992 (No. 23 of 1992), for the purpose of giving effect to the said section 165 in relation to the polls to be taken on the eleventh day of June 2004, hereby makes the following Regulations:

Citation.

1. These Regulations may be cited as the Electoral Act, 1992 (Section 165) Regulations, 2004.

Interpretation.

2. In these Regulations--

“the Act of 1992” means the Electoral Act, 1992 ;

“the Act of 1994” means the Referendum Act, 1994 (No. 12 of 1994);

“the Act of 1997” means the European Parliament Elections Act, 1997 (No. 2 of 1997);

“the 1995 Regulations” means the Local Elections Regulations, 1995 ( S.I. No. 297 of 1995 );

“county ballot paper” means a ballot paper used for the purpose of a local election of members of a county council or of members of a city council;

“county election” means a local election of the members of a county council or of members of a city council;

“European election” means an election of members to the European Parliament;

“the European Communities” has the same meaning as in the European Communities Acts 1972 to 1998;

“European Parliament” means the Parliament of the European Communities and references to “European Parliament constituency” and “European Parliament election” shall be construed accordingly;

“local election” means an election of members to a local authority;

“local electoral area” or “electoral area” means the area or any of the areas (as may be appropriate) by reference to which a local election is held;

“local returning officer” means the person who, in accordance with section 17 of the Act of 1997 and section 18(2)(c) of the Act of 1994, is a local returning officer for a county or city;

“the Minister” means the Minister for the Environment, Heritage and Local Government;

“postal voter” means a person whose name is included in the list prepared pursuant to section 14 of the Act of 1992 and section 63 of the Electoral Act 1997 ;

“postal voters list” means the list prepared pursuant to section 14 of the Electoral Act 1992 and section 63 of the Electoral Act 1997 ;

“referendum” means the referendum to be held on the proposal contained in the Twenty-seventh Amendment of the Constitution Bill 2004;

“special voter” means a person whose name is included in the special voters list prepared under section 17 of the Act of 1992;

“town ballot box” and “town ballot paper” mean, respectively, a ballot box and a ballot paper used for the purpose of a town council poll;

“town election” means a local election of members of the council of a borough, the council of a town and “town poll” shall be construed accordingly.

Effect of Regulations.

3. (1) These Regulations shall have effect in relation to the referendum and to every election the poll, if any, is to be taken on the 11^th day of June 2004.

(2) These Regulations shall not have effect in relation to a fresh election held pursuant to Rule 23(2) or Rule 27 of the Second Schedule to the Act of 1997 or article 28 of the 1995 Regulations where the poll at such fresh election is to be taken on a day other than the 11th day of June 2004.

Returning officers.

4. (1) Subject to the provisions of article 5 of these Regulations, the local returning officer for a county or city shall be the returning officer for the purposes of the provisions referred to in the Table to this article as respects a local election in a local electoral area or electoral area situate in the county or city concerned and the powers and duties of the relevant returning officer under the provisions referred to in the Table shall be exercised and performed by the said local returning officer and references in the said provisions to the returning officer shall be construed as references to the local returning officer.

(2) The powers and duties of the returning officer in relation to a local election (other than those referred to in the Table to this article) shall be exercised and performed by the clerk of the town council or the person assigned to perform the duties concerned by article 7 of the Local Government Act 2001 (Supplementary Provisions) Regulations 2001 ( S.I. No. 590 of 2001 ), who, in accordance with article 4 of the 1995 Regulations, is the returning officer for that election.

(3) Notwithstanding sub-articles (1) and (2) of this article, the returning officer for a local election shall be entitled to be admitted to any polling station or count centre where a poll or a count at an election for which he or she is the returning officer is being taken.

TABLE

Deputy local returning officer.

5. It shall be lawful for a local returning officer to appoint a deputy local returning officer for the discharge of all or any particular part of the duties of such local returning officer.

Mutual assistance.

6. It shall be the duty of every person upon whom any function is conferred by or under the law for the time being in force in relation to the referendum and to an election to which these Regulations apply and of every person appointed or employed (otherwise than by a candidate) for any purpose related to such referendum or election, to furnish such information and render such other assistance to any other such person as that other person requires for the purposes of the referendum or election.

Agents.

7. (1) In the case of a local election, article 26 of the 1995 Regulations will apply, subject to articles 4 and 21 of these Regulations.

(2) In the case of a European election, rules 24 to 26 of the Second Schedule to the Act of 1997 and article 21 of these Regulations will apply.

(3) In the case of a referendum, section 26 of the Act of 1994, sections 11 and 15 of the Referendum Act 1998 and article 21 of these Regulations will apply.

Notices of poll and situation of polling stations.

8. (1) (i)  Where, under articles 25 and 28 of the 1995 Regulations, the local election for a local electoral area or electoral area is adjourned for the purpose of taking a poll or the candidates standing nominated are declared elected or the election is not proceeded with, the relevant returning officer shall so inform the local returning officer for the county or city in which the local electoral area or electoral area is situate.

(ii)  Where an election is adjourned under sub-article (i) of this article, the relevant returning officer shall furnish to the local returning officer a copy of the notice of poll given under article 50 of the 1995 Regulations.

(2) The local returning officer for a county or city shall furnish a copy of the public notice in relation to the situation of polling stations given by him or her under rule 56(4) of the Second Schedule to the Act of 1997 and section 94(3) of the Act of 1992, (as applied to a referendum by section 32(1) of the Act of 1994) to the returning officer for any local electoral area or electoral area situated in the county or city concerned.

Polling districts and polling stations.

9. The local returning officer may make such modifications to a polling district or a polling place, notwithstanding a polling scheme confirmed under section 28 of the Act of 1992 or a register of electors published in accordance with section 13 of the Act of 1992, as is considered necessary having regard to the convenience of electors in facilitating voting at the polls to be taken on the 11^th day of June 2004.

Polling cards.

10. (1) Where a polling information card is sent to an elector under section 92 of the Act of 1992 (as applied to a referendum by section 32(1) of the Act of 1994), a polling information card shall not be sent to that elector under rule 54 of the Second Schedule to the Act of 1997.

(2) Where a polling information card is sent to an elector under rule 54 of the Second Schedule to the Act of 1997, a polling information card shall not be sent to that elector under article 55 of the 1995 Regulations.

Polling on islands.

11. (1) Sections 85 and 86 of the Act of 1992 (as applied to a referendum by section 30 of the Act of 1994) and article 49 of the 1995 Regulations shall not have effect in relation to the referendum or an election to which these Regulations apply.

(2) Rule 48 of the Second Schedule to the Act of 1997 shall apply in relation to the referendum and local elections in the same manner as the said rule applies to the European Parliament elections.

Authorisation of physically ill or physically disabled elector to vote at another polling station.

12. (1) Section 31(2) of the Act of 1994 and article 62 of the 1995 Regulations shall not have effect in relation to the referendum or a local election to which these Regulations apply.

(2) Rule 61 of the Second Schedule to the Act of 1997 shall apply in relation to the referendum and local elections in the same manner as the said rule applies to the European Parliament elections except in the case of a local election, the alternative polling station shall be in the same local electoral area or electoral area.

Voting by persons in the employment of local returning officer.

13. (1) Section 31(1) of the Act of 1994 and article 61 of the 1995 Regulations shall not have effect in relation to the referendum or a local election to which these Regulations apply.

(2) Rule 60 of the Second Schedule to the Act of 1997 shall apply in relation to the referendum and local elections in the same manner as the said Rule applies to the European Parliament elections except in the case of a local election, the alternative polling station shall be in the same local electoral area or electoral area.

Special voting.

14. (1) Where ballot papers and related documents are to be delivered to a special voter at more than one poll to which these Regulations apply, the same person shall be appointed as special presiding officer for each of the polls and the functions of the special presiding officer under the Act of 1992 (as applied to a referendum by section 29 of the Act of 1994), the Act of 1997, Part VIII of the 1995 Regulations shall be performed by the officer at the same time in respect of each poll.

(2) The returning officer for each local election shall supply to the local returning officer such numbers of ballot papers and related documents as that officer shall require for the purposes of special voting at the local elections.

(3) Where ballot papers and related documents are to be delivered to a special voter at one or more than one poll to which these regulations apply:

(a)  the local returning officer shall, on the copy of the special voters list issued to the special presiding officer, cause--

(i)  the mark “E” to be placed against the name of each person on the list entitled to vote at the European Parliament election and at the local election only,

(ii) the mark “L” to be placed against the name of each person on the list entitled to vote at the local election only.

(b)  a single declaration of identity shall be completed by the special voter,

(c)  the special presiding officer shall, as soon as he or she has given a ballot paper for each of the polls concerned to the special voter--

strike a line through the person's name on the copy of the special voters list if ballot papers have been issued to that person for all polls to be taken. In any other case, the special presiding officer shall mark against the person's name on the special voters list--

the letter “R” if a referendum ballot paper has been issued to him or her;

the letter “E” if a ballot paper for the European ballot paper has been issued to him or her;

the letter “U” if a town ballot paper has been issued to him or her;

the letter “L” if a county ballot paper has been issued to him or her.

(d)  the completed ballot paper for each poll shall be put in a separate ballot paper envelope by the voter, and

(e)  the special presiding officer shall place the ballot paper envelope or envelopes and the completed declaration of identity in a single covering envelope which he or she shall seal and to which he or she shall affix a label in the prescribed form signed by himself or herself and by the member of the Garda Síochána.

(f)  the special presiding officer shall complete a ballot paper account for each poll to which these regulations apply.

(4) The local returning officer shall immediately on receipt of covering envelopes from a special presiding officer, place them unopened in a sealed ballot box marked “special voters ballot box” (by which name such ballot box is in this article subsequently referred) and shall make provision for the safe custody of the ballot box.

(5) The local returning officer shall open the special voters ballot box as soon as may be after all covering envelopes have been received from all the special presiding officers appointed by the officer for the polls to which these Regulations apply.

(6) the provisions of rules 36 and 37 of the Second Schedule to the Act of 1997 shall apply to the opening of the special voters ballot box by the local returning officer as if--

(a)  rule 36(1) were deleted;

(b)  “opening of the special voters ballot box” and “special voters ballot box” were substituted for “polling day” and “postal voters ballot boxes” in rule 36(2);

(c)  “special voters ballot box” were substituted for “postal voters ballot box”;

(d)  “declaration of identity” were substituted for “receipt”;

(e)  “article 14(8) of the Electoral Act, 1992 (Section 165) Regulations 2004” were substituted for “rule 38” in rule 36(4);

(f)  “declaration of identity has been duly signed and witnessed” were substituted for “receipt has been duly signed” in rule 36(5);

(g)  “or agents appointed for the purpose of the referendum” were inserted after “agent of a candidate” in rule 37;

(7)   (a) In the event that the covering envelope does not have the label referred to in rule 47(3)(c) of the Second Schedule to the Act of 1997 or if such label is not duly signed by the special presiding officer and the member of the Garda Síochána, the local returning officer shall reject the covering envelope and deal with it as if it were a declaration of identity which had not been duly signed and witnessed;

(b)  the local returning officer shall provide a separate receptacle for each poll and for declarations of identity which have been duly signed and witnessed and shall label them accordingly;

(c)  each ballot paper envelope (or ballot paper which is not contained in a ballot paper envelope) accompanied in a covering envelope by a declaration of identity which has been duly signed and witnessed shall be placed in the receptacle for the poll to which it relates.

(8) When the covering envelopes in the special voters ballot box have been opened and their contents dealt with in accordance with sub-articles (6) and (7), the local returning officer shall, in the presence of agents, place the contents of the receptacles for the European Parliament election and the referendum into the appropriate postal voters ballot box. The ballot paper envelope (or a ballot paper which is not contained in a ballot paper envelope) in each receptacle for a local election shall be sealed in a separate packet and delivered as soon as may be to the appropriate returning officer who shall open the packet and place the contents in the postal voters ballot box for the local election concerned. The packet should be accompanied by a receipt form in duplicate and a signed copy should be returned to the local returning officer. The local returning officer shall also send to the returning officer the items concerning the local election referred to in article 47(2)(a), (b) and (d) of the 1995 Regulations.

Postal Voting.

15. (1) Where ballot papers and related documents are to be sent to a postal voter both under section 68 of the Act of 1992 (as applied to a referendum by section 28 of the Act of 1994) and under rule 32 of the Second Schedule to the Act of 1997:

(a)  the ballot papers and documents shall be enclosed in a single covering envelope addressed to the postal voter;

(b) a single covering envelope addressed to the local returning officer shall be provided for the return of the documents by the postal voter;

(c)  a single form of receipt shall be sent to each postal voter; and

(d)  separate ballot paper envelopes shall be sent to each postal voter.

Postal Voting.

16. A ballot paper returned by a postal voter shall not be rejected solely on the grounds that it is not included in the correct envelope or is accompanied by a receipt (or declaration of identity, as the case may be) other than that issued by the relevant returning officer.

Opening of postal voter ballot boxes.

17. (1) The procedure in sub-article (2) shall apply to special voter ballot paper envelopes or special voter ballot papers not in a ballot paper envelope when the postal voter ballot boxes are opened under--

(i)  section 73 of the Act of 1992 (as applied to a referendum by section 28(3) of the Act of 1994,

(ii) rule 36 of the Second Schedule to the Act of 1997,

(iii) article 38 of the 1995 regulations.

(2) The local returning officer, or the returning officer, as the case may be, shall first extract the special voter ballot paper envelopes and any special voter ballot papers not contained in ballot paper envelopes. The officer shall place--

(i)  each such ballot paper envelope in the receptacle for ballot paper envelopes and subsequently treat it in the same manner as a ballot paper envelope extracted from a postal voter covering envelope following the opening of the postal voter ballot boxes and placed in the same receptacle,

(ii) each such ballot paper, without unfolding it, in a ballot box in accordance with, as the case may be--

(a)  section 75 of the Act of 1992, (as applied to a referendum by section 28(3) of the Act of 1994),

(b)  rule 38 of the Second Schedule to the Act of 1997,

(c)  article 40 of the 1995 Regulations.

Opening of postal and special voter ballot paper envelopes.

18. At the time of opening the postal voter and special voter ballot paper envelopes, a local returning officer or returning officer, as the case may be, finds a ballot paper relating the referendum or other election for which the officer is not the relevant returning officer, he or she shall (a) place such ballot papers in a packet together with two copies of a statement showing the number of papers enclosed in the packet and (b) seal each such packet and transmit it by hand to the relevant returning officer, who shall acknowledge receipt of the packet on one copy of the statement and transmit it to the other returning officer.

Provisions relating to taking of poll.

19. The following provisions shall have effect in relation to the taking of the polls in a polling station at the elections and referendum to which these Regulations apply:

(a)  each poll shall be taken by a local returning officer;

(b)  the same person shall be appointed to be the presiding officer at each poll;

(c)  the same copy of the register of electors shall be used for the poll at each election and referendum and such copy of the register shall be marked to indicate the poll or polls in respect of which a ballot paper is delivered to each elector;

(d)  where one of the polls is the poll at a town election, a separate ballot box shall be provided for such poll and on the close of the poll, the ballot box shall be delivered to the returning officer for the town election;

(e)  the returning officer for a local election shall furnish to the local returning officer such numbers of ballot papers and other documents as that officer shall require for the purpose of taking the poll at that election in each polling station;

(f) the following questions shall be substituted for those set out in rule 72(1)(c) of the Second Schedule to the Act of 1997, section 111(2)(c) of the Act of 1992 as applied to a referendum by section 32(1) of the Act of 1994, and article 73(2) of the 1995 Regulations:

“(i)  Are you the same person as the person whose name appears as AB on the register of electors now in force for the county/city of ------------------?

(ii) Have you already voted at this election or referendum (as the case may be)?

(iii) Have you reached the age of eighteen years?

and (in the case only of a person who applies for a ballot paper relating to the European Parliament election)

(iv) Are you either or both of the following--

(a)  a citizen of Ireland,

(b)  a national of a Member State of the European Communities other than Ireland?”;

(g)  the following oath (or affirmation) shall be substituted for the oath (or affirmation) set out in section 111(2)(d) of the Act of 1992, as applied to a referendum by section 32 of the Act of 1994, rule 72(1)(d) of the Second Schedule to the Act of 1997 and article 73(3) of the 1995 Regulations:

“I swear by Almighty God (or -- do solemnly, sincerely and truly declare and affirm -- as the case may be) that I am the same person as the person whose name appears as AB on the register of electors now in force and that I have not already voted at the referendum or at these elections and that I have reached the age of eighteen years and (in the case only of a person who applies for a ballot paper relating to the European Parliament election) that I am a citizen of Ireland (or -- a national of a Member State of the European Communities other than Ireland -- or -- both a citizen of Ireland and a national of a Member State of the European Communities other than Ireland -- as the case may be)”.

Delivery of town ballot boxes and packets to returning officers.

20. As soon as may be after the close of poll, the local returning officer shall deliver to the returning officer at each town election the ballot boxes containing the ballot papers relating to that election together with the packets received by him or her from the several presiding officers under paragraphs (a), (c) and (d) of article 72(2) of the 1995 Regulations.

Verification of postal ballot paper accounts at a county election.

21. (1) Not earlier than 9 a.m. on the day next after polling day and at the time fixed by the returning officer for a county election and at the place appointed under article 74(2) of the 1995 Regulations, the returning officer shall, in the presence of the agents of the candidates, open the postal ballot box, which was sealed under article 40 of the 1995 Regulations, and extract the postal ballot papers therefrom.

(2) The ballot papers extracted by the returning officer from the postal voters ballot box shall be counted and their total number shall be compared with the number shown in the appropriate ballot paper account. The returning officer shall prepare a statement showing the result of this comparison and shall, on request, allow the agent of any candidate to copy the statement.

(3) The returning officer shall place the counted ballot papers in a ballot box which shall be sealed. When the returning officer receives the ballot papers for the council election from the local returning officer under article 22 of these Regulations, he or she shall mix together the whole of the ballot papers in respect of each local electoral area and shall proceed to count the votes in respect of each such area in accordance with Parts XII and XIII of the 1995 Regulations.

(4) The provisions of article 75 of the 1995 Regulations in relation to attendance at the counting of the votes shall apply to attendance at the proceedings under this article.

Opening of ballot boxes relating to European Parliament election, county election and referendum.

22. (1) The local returning officer shall specify the hour of 9 a.m. on the day next following the polling day as the day and time at which he or she will open the ballot boxes pursuant to rule 73 of the Second Schedule to the Act of 1997.

(2) At the time and place appointed under the said rule, the local returning officer shall open the ballot box relating to each polling station, commencing with polling stations at which a town election was taken, and shall:

(a)  in accordance with section 114(1A) of the Act of 1992 applied to a referendum by section 33 of Act of 1994, rule 75(1A) of the Second Schedule to the Act of 1997 and article 76(1A) of the Regulation of 1995, a ballot box containing not more than 50 ballot papers for any of the polls at the referendum, European and county elections held on 11 June 2004 shall be opened such that, although the box is opened in the presence of the agents of the candidates, the preferences on the individual ballot papers for the poll where there is not more than 50 ballot papers cannot be read by those agents or other persons present at the count.

(b)  examine the ballot papers therein so as to ascertain if the box contains ballot papers relating to the town election,

(c)  remove any such ballot papers found in the box,

(d)  place such ballot papers in a packet together with two copies of a statement showing the number of papers enclosed in the packet and giving particulars of the polling station to which they relate,

(e)  seal each such packet and transmit it by hand to the returning officer for the town election, who shall acknowledge receipt of the packet on one copy of the statement referred to in paragraph (d) and transmit such statement to the local returning officer.

(3) The local returning officer shall--

(a)  count the number of county ballot papers found in each box and compare the total number of papers so ascertained with the number shown in the appropriate county ballot paper account;

(b)  prepare a statement showing the result of this comparison in respect of all the ballot boxes for each local electoral area and including particulars of the county ballot papers, if any, transmitted to him or her pursuant to article 24(1) of these Regulations; and

(c)  deliver the ballot papers to the returning officer for the county election, together with the appropriate statements referred to in paragraph (b) of this sub-article and the packets and statements relating to such ballot papers received by him or her from the several presiding officers under article 72(2)(a), (c) and (d) of the 1995 Regulations, making adequate arrangements for the safety and safe custody of the ballot papers and other documents in the course of such delivery.

(4) The local returning officer shall then deal with the ballot papers relating to the European Parliament election in accordance with Part IX of the Second Schedule to the Act of 1997 and the ballot papers relating to the referendum in accordance with Part III of the Act of 1994.

(5) The returning officer for the county election on receipt of the ballot papers delivered to him or her in accordance with paragraph (c) of subarticle (3), shall forthwith deal with them in accordance with the relevant Parts of the 1995 Regulations.

(6) The local returning officer, his or her assistants and clerks, the returning officer for the county election, members of the Garda Síochána on duty, agents of the candidates and agents for the purpose of the referendum duly appointed for this purpose and no other person, except with the permission to the local returning officer, may be present at the proceedings under this article.

Time and place for counting of votes at a county election.

23. The counting of the votes at a county election shall commence as soon as practicable on the day next following polling day after the receipt of the ballot papers by the returning officer under article 22(3) of these Regulations.

Opening of town election ballot boxes.

24. (1) Not later than the hour of 9 a.m. on the day next following the polling day, the returning officer for each town election shall:

(a)  commence to open each ballot box containing the ballot papers relating to the town election and examine the ballot papers therein so as to ascertain if the ballot box contains any ballot papers relating to the referendum or European Parliament election or county elections;

(b)  remove any such ballot papers found in the box,

(c)  place such papers in separate packets together with two copies of a statement showing the number of papers enclosed in each packet and giving particulars of the polling station to which the ballot papers relate, and

(d)  seal each such packet and transmit it by hand to the local returning officer who shall acknowledge receipt of the packet on a copy of a statement referred to in paragraph (c) and return the receipted statement to the relevant returning officer.

(2) Having dealt with each town ballot box in accordance with the preceding sub-article and having regard to any town ballot papers received from the local returning officer under article 22(2) of these Regulations, the returning officer shall proceed to count the votes in accordance with Parts XII and XIII of the 1995 Regulations.

(3) The provisions of article 75 of the 1995 Regulations in relation to attendance at the counting of the votes shall apply to attendance at the proceedings under this article.

Marked register of electors.

25. (1) Notwithstanding section 38(2)(a) of the Act of 1994 and rule 93(3)(d) of the Second Schedule to the Act of 1997, the local returning officer shall place the marked copies of the register of electors referred to in article 19(c) of these Regulations in separate sealed packets and shall mark on each packet particulars of its contents, date of polling day at the polls and the county or city to which they relate and shall as soon as practicable forward the packet or packages to the returning officer for the local elections for the county concerned.

(2) The returning officer for the county election shall retain the marked register as specified in article 92(3) of the Regulations of 1995.

(3) Section 38 and 39 of the Act of 1994 and section 20 and rule 93 of the Second Schedule of the Act of 1997 shall apply to the marked register retained by the returning officer under this article.

Modification of Act of 1994.

26. The Act of 1994 shall have effect as if in section 15(3) “and the Electoral Act 1992 (Section 165) Regulations 2004” were inserted after “with this Act”.

Modification of Act of 1997.

27. The Act of 1997 shall have effect as if in section 17(2)(b) “and the Electoral Act 1992 (section 165) Regulations 2004” were inserted after “by this Act”.

Modification of 1995 Regulations.

28. The 1995 Regulations shall have effect as if:

(a)  “and the Electoral Act, 1992 (Section 165) Regulations 2004” were inserted after “and these Regulations” in article 5;

(b)  “for the purpose of the taking of” were substituted for “and shall take” in article 25(1)(a) and in the same sub-article there were inserted “and the Electoral Act 1992 (Section 165) Regulations 2004” after “these Regulations” in paragraph (a);

(c)  “local returning officer who shall forthwith inform the” were inserted after “such adjournment to the” in article 69(3);

(d)  “an town election” were substituted for “local authority” in article 74(1);

(e)  “and including particulars of the town ballot papers, if any, transmitted to him or her pursuant to article 22 of the Electoral Act, 1992 (Section 165) Regulations 2004” were inserted after “of all the ballot boxes” in article 76(3); and

(f)  article 92(2)(d) were deleted.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation).

These Regulations make certain provisions in relation to the Referendum, the European Parliament elections and the local elections which are to be held on the 11^th day of June 2004, in order to facilitate the taking of the polls at these elections and the referendum on the same day.