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12 1994

REFERENDUM ACT, 1994

PART III

The Counting of the Votes

Arrangements in relation to the counting of votes.

33. —The provisions of sections 112 to 115 and 117 of the Act of 1992 shall, subject to the modifications specified in section 2 (3) apply and have effect in relation to the arrangements for the counting of votes by the local returning officer in each constituency at a referendum.

Invalid ballot papers.

34. —(1) A ballot paper—

(a) which does not bear the official mark, or

(b) on which the mark “x” or any other mark which, in the opinion of the local returning officer, clearly indicates a vote, is not placed at all or is not so placed as to indicate a vote in favour of or a vote against the proposal which is the subject of the referendum, or

(c) on which the mark “x” or any other mark which, in the opinion of the local returning officer, clearly indicates a vote, is so placed as to indicate both a vote in favour of and a vote against the proposal, or

(d) on which anything is written or marked which, in the opinion of the local returning officer, is calculated to identify the elector,

shall be invalid and not counted, but a ballot paper shall not be invalid by reason only of its bearing the figure “1” or the word “one” or any other mark which, in the opinion of the local returning officer, clearly indicates a vote in favour of or against the proposal.

(2) The local returning officer shall cause the ballot papers to be scrutinised for the purpose of discovering any papers liable to be rejected as invalid.

(3) The local returning officer shall endorse the word “rejected” on any ballot paper which under this section is not counted. The local returning officer shall prepare a statement in such form as may be directed by the Minister showing the number of ballot papers rejected under each of the paragraphs (a) to (d) of subsection (1) and shall, on request, allow any agent present to copy such statement.

(4) The local returning officer may endorse on any ballot paper not rejected as invalid an indication of the officer's decision on it in relation to its validity without, however, interfering with any mark placed by the elector on the ballot paper.

(5) The decision of the local returning officer, whether expressed or implied by his acts, on any question which arises in relation to any ballot paper shall be final, subject only to reversal on a referendum petition.

Counting of the votes.

35. —(1) After the ballot papers have been mixed in accordance with section 114 of the Act of 1992 (as applied by section 33 ), the local returning officer shall, rejecting any that are invalid, arrange them in parcels according to the votes recorded on them and shall count and record the number of votes given in favour of the proposal which is the subject of the referendum and the number of votes given against that proposal and shall ascertain the total number of valid papers for the constituency concerned.

(2) Having counted the votes in accordance with subsection (1), the local returning officer shall forthwith notify the referendum returning officer, in such manner as the latter may direct, of the number of votes given in favour of the proposal and the number of votes given against the proposal and the total number of valid ballot papers.

Recount.

36. —(1) The local returning officer may and, if required by an agent appointed under paragraph (c) of section 26 (1), shall recount the votes recorded on all the ballot papers or on the ballot papers contained in any particular parcel.

(2) Subject to subsection (3), nothing in this section shall make it obligatory on the local returning officer to recount more than once the votes recorded on the ballot papers contained in any particular parcel or to comply with a request under this section by an agent which, in the opinion of the local returning officer, is frivolous or vexatious.

(3) Before signing the provisional referendum certificate under section 40 , the referendum returning officer may, in an appropriate case, direct any or every local returning officer to re-examine all the ballot papers for the constituency concerned and recount the votes recorded on such ballot papers and forthwith notify the referendum returning officer of the result of the re-examination and recount and the local returning officer shall comply with the terms of the direction.

Report to the referendum returning officer.

37. —(1) On the completion of the counting of the votes in a constituency, the local returning officer for the constituency shall furnish to the referendum returning officer a report in writing in the form directed by the Minister stating—

(a) the number of valid votes recorded in favour of the proposal which is the subject of the referendum,

(b) the number of valid votes recorded against that proposal, and

(c) the total number of valid votes recorded at the referendum in the constituency,

together with the statement referred to in section 34 (3).

(2) Where the same day is the polling day at two or more referenda, the local returning officer shall furnish a separate report in respect of each such referendum.

Retention and disposal of documents.

38. —(1) On the completion of the counting of the votes in a constituency, the local returning officer for the constituency shall place in separate sealed packets—

(a) the counted ballot papers,

(b) the ballot papers not counted because of invalidity under section 34 ,

(c) the unused and spoilt ballot papers, and

(d) the counterfoils of ballot papers issued at polling stations,

and shall mark on each packet particulars of its contents, the referendum to which they relate, the date of the polling day at the referendum concerned and the constituency to which they relate.

(2) The local returning officer shall also place in separate sealed packets—

(a) the marked copies of the register of electors used at polling stations,

(b) the ballot paper accounts and the statement referred to in section 114 of the Act of 1992 (as applied by section 33 ), and

(c) any authorisations issued by the local returning officer to electors pursuant to section 31 ,

and shall mark on each packet particulars of its contents, the referendum to which they relate, the date of the polling day at the referendum concerned and the constituency to which they relate.

(3) The local returning officer shall as soon as practicable, forward to the referendum returning officer the packets referred to in this section together with the packets and statement referred to in sections 76 and 83 (2) (other than paragraph (e) of that subsection) of the Act of 1992 (as applied by sections 28 and 29 ).

(4) The documents sent to the referendum returning officer in pursuance of this section shall be retained by that officer for 6 months from the date on which the provisional referendum certificate in respect of such referendum has become final. At the expiration of the said period, the referendum returning officer shall, unless otherwise directed by an order of the High Court or the referendum returning officer has reason to believe that the documents may be required for a purpose referred to in section 39 (3), cause the documents to be destroyed.

Inspection of ballot papers etc.

39. —(1) No person shall be allowed to inspect any of the documents mentioned in subsection (2) except under an order of the High Court.

(2) The documents referred to in subsection (1) are—

(a) the counterfoils of the ballot papers sent to postal voters in pursuance of section 28 .

(b) the counterfoils of the ballot papers delivered to special voters in pursuance of section 82 of the Act of 1992 (as applied by section 29 ),

(c) the documents referred to in subsections (2) and (3) of section 76 of the Act of 1992 (as applied by section 28 ), and

(d) the documents referred to in section 38 (1).

(3) An order referred to in subsection (1) shall not be made unless the court is satisfied that the inspection or production of the documents concerned is required for the purpose of instituting or maintaining a prosecution for an offence under a provision of the Act of 1992 specified in section 6 and as applied by that section or for the purpose of a referendum petition.

(4) An order referred to in subsection (1) may be made subject to such conditions as to persons, time and place and mode of inspection or production as the court may think expedient and shall make provision to ensure that the manner in which any voter voted shall not be disclosed.

(5) Where an order is made under subsection (1) in relation to a document referred to in that subsection—

(a) the production in a court by the referendum returning officer of that document shall, until the contrary is proved, be sufficient proof that the document relates to the referendum specified in the order, and

(b) any endorsement appearing on any packet produced in a court by the referendum returning officer shall, until the contrary is shown, be sufficient evidence that the contents of the packet are what they are stated to be in the endorsement.

The provisional referendum certificate.

40. —(1) As soon as the referendum returning officer has received from every local returning officer the report referred to in section 37 of the numbers of the votes recorded in the constituency, the referendum returning officer shall prepare from such reports and shall sign the provisional referendum certificate in the prescribed form stating—

(a) in the case of a constitutional referendum, the number of votes recorded in favour of the proposal which is the subject of the referendum, the number of votes recorded against the proposal, and whether a majority of the votes recorded at the referendum was or was not recorded in favour of the proposal;

(b) in the case of an ordinary referendum, the number of votes recorded in favour of the proposal which is the subject of the referendum, the number of votes recorded against the proposal, and the total number of presidential electors on the register of electors for the time being in force, and if the number of votes recorded against the proposal exceeds the number of votes recorded in favour of the proposal, whether the number of votes recorded against the proposal is or is not less than thirty-three and one third per cent of the said total number of presidential electors, and in any case whether such proposal was or was not vetoed at such referendum;

(c) in every case, the number of votes reported by the local returning officers to have been recorded in each constituency in favour of the proposal which is the subject of the referendum and the number of votes similarly reported to have been recorded in each constituency against the proposal.

(2) As soon as may be after signing the provisional referendum certificate, the referendum returning officer shall publish in Iris Oifigiúil a copy of that certificate together with a statement that such certificate will become final and incapable of being questioned when the officer is informed by the Master of the High Court either that no referendum petition has been duly presented in respect thereof or that every referendum petition so presented has become null and void.

(3) When a provisional referendum certificate has become final otherwise than by being confirmed by the High Court, the referendum returning officer shall endorse on such certificate a statement that it has so become final and shall send a copy thereof to the President and the Taoiseach.

(4) When a provisional referendum certificate has been confirmed or is deemed to have been confirmed by the High Court and is returned to the referendum returning officer with a statement of the fact of such confirmation endorsed thereon in accordance with this Act, the referendum returning officer shall send a copy of such certificate to the President and the Taoiseach.

Notification by Master of the High Court.

41. —Subject to the provisions of section 58 , where—

(a) application for leave to present a referendum petition in relation to a provisional referendum certificate has not been made to the High Court within the time limited by section 42 (2), or

(b) the High Court has refused all such applications made to it within the said time, or

(c) no referendum petition has been presented in relation to the provisional referendum certificate within the time limited by section 44 , or

(d) every referendum petition so presented has, under section 44 (4) or 50 (3), become null and void,

the Master of the High Court shall forthwith notify the referendum returning officer in writing accordingly.