6/10/2020 Sinnott -v- The Minister for The Environment [2017] IEHC 214 (30 March 2017) “94(5) The returning officer shall provide at each polling station ……… (j) Such arrangements as the Minister may provide for by Regulations as may serve to facilitate voters with visual impairments to mark their ballot papers without assistance.” 47. Until the introduction of the 2016 Regulations, the system provided by s. 103(3) of the 1992 Act only provided that where a presiding officer is satisfied that an elector’s sight is so impaired that he is unable to vote without assistance:“The elector may request that his ballot paper shall be marked for him by a companion and, subject to subs. (4), the companion may go with the elector into one of the compartments in the polling station and there shall mark the ballot paper for the elector and shall fold it and show the back of the folded paper to the presiding officer so as to disclose the official mark and forthwith place the mark in the ballot box.” 48. Section 106(5) of the 1992 Act provides that in the absence of a companion:“the presiding officer shall, in the presence of the elector and the personation agents and no other person, mark a ballot paper as instructed by such elector and shall then fold it and place it in the ballot box.” 49. Section 103(6) of the 1992 Act enables a presiding officer to refuse a request if in his opinion such an action by the officer would interfere with the proper discharge of his duties or would unduly obstruct the voting of other Dáil electors. Case law 50. In McMahon v. Attorney General [1972] I.R. 69 the plaintiff challenged the procedure in Dáil elections by which a voter’s number on the register of electors was recorded on the counterfoil of his ballot paper. This meant that it was possible in a complex procedure where enquiries had to be made into spoiled ballot papers to ascertain how he voted, albeit that the chance of this ever happening was extremely remote. 51. The High Court (Pringle J.) held that the procedure for recording the voter’s number on the counterfoil for possible examination violated the right to a secret ballot as enshrined by Article 16 of the Constitution. The Supreme Court by a majority of three to two, and on slightly different reasoning, dismissed the State’s appeal and held that the legislation in issue was repugnant to the Constitution. Ó’Dálaigh C.J. referred to the requirement of secrecy in the absolute sense. He stated (at) p. 104:“Limited secrecy is not secrecy: it is something less than secrecy.” He continued (at p. 106):“Article 16, s. 1, sub-s. 4 of the Constitution speaks of voting by secret ballot. The fundamental question is: secret to whom? In my opinion there can be only one plain and logical answer to that question. The answer is: secret to the voter. It is the voter’s secret. It is an unshared secret. It ceases to be a secret if it is disclosed. The Constitution guarantees the voter that his vote would be secret. In my opinion the Constitution therefore requires that nothing shall be done which would make it possible to violate that secrecy.” 52. I accept the submission made by counsel for the plaintiff that the following statement of Ó’Dálaigh C.J. at p. 105 is particularly relevant to the developments such as TVDs:“The proper principle to be applied here is that stated in the decision of this Court in Quinn’s Supermarket Limited v. The Attorney General: the right to vote of the incapacitated person has to be reconciled by the general right to vote by secret ballot. The latter right, which by its very nature is a guarantee of the free exercise of the right to vote, cannot be made the means of preventing the exercise of the right to vote simply because the incapacity of some electors renders absolute secrecy impossible. A law which contained provisions which enabled such a person to vote with the maximum degree of secrecy compatible with his www.bailii.org/ie/cases/IEHC/2017/H214.html 8/15