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UNREPORTED IRISH CASES
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-
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
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