Returning officer discriminated against Portuguese national over ballot paper denial

Seán McCárthaigh

A Portuguese national who was not provided with a ballot paper for the local election at his local polling station was discriminated against by the returning officer for Galway county, a tribunal has found.

The Workplace Relations Commission upheld a complaint by Carlos Manuel Garcia da Silva that the returning officer had breached the Equal Status Act 2000 by discriminating against him on grounds of his nationality.

“I am satisfied that, if he had been an Irish national, the complainant would have been issued with a ballot paper to vote in the local elections,” said WRC adjudication officer, Catherine Byrne.

The WRC also ordered the returning officer to arrange for signage to be posted in the polling stations to inform voters how to make inquiries about their voting rights which should include the name and contact number of the person in charge of the polling station.

Mr Garcia da Silva, who has lived in Ireland for 30 years, told the WRC that he had gone to his local polling station in Ballybane, Co Galway at around 3.30pm on June 7th, 2024 – the polling day for the local and European elections.

He outlined how he had provided his driving licence as identification to two officials at the table where he went to collect his ballot papers.

He recalled one of the officials remarked that there was an “E” next to his name and the other official told him that meant he was only entitled to vote in the European elections.

Mr Garcia da Silva said he was very surprised by this as he was almost 100 per cent certain that he was entitled to vote in both local and European elections.

He hesitated because he thought there might have been some new legislation regarding voting rights, but it had never crossed his mind that the officials at the polling desk were not trained and correctly informed of procedures and regulations for voting.

The WRC heard that Mr Garcia da Silva took the ballot paper for the European elections and voted.

He recounted how he felt embarrassed that he had asked for something to which he was not entitled or that he had done something reprehensible or incorrect.

When his wife, Maria, arrived home that evening at around 8pm, she was upset and angry because she had a similar experience about being told that she was not allowed to vote in the local elections.

However, when she queried this, she was referred to the presiding officer, who confirmed she was eligible to vote in both elections.

Mr Garcia da Silva said his wife suggested he should return to the polling station, but he decided not to as he had had a long day at work and needed to get up early the following day.

Ms de Almeida Silva told the WRC that the most upsetting aspect of the case was the failure of anyone to respond to their complaint, which had compounded how they were treated at the polling station.

She recalled how she felt the returning officer hoped they might “go home.”

Mr Garcia da Silva pointed out that voting is a right and a small number of votes can be the deciding factor in a candidate getting elected.

He said preventing an individual from voting was not only a breach of their right, it might also impinge on the democratic process of an election.

The returning officer’s solicitor, David Higgins, acknowledged that there had been a mistake in not allowing Mr Garcia da Silva to vote in the local election, which had not been corrected by the presiding officer.

Mr Higgins said the poll clerks would not have been aware of his nationality, but he apologised for their “unfortunate error.”

The WRC heard that it was the first time such a problem had occurred for the returning officer who had overseen elections for 19 years.

In her ruling, Ms Byrne said voting was a serious matter and the public had to rely on the expertise of staff overseeing the voting process to make correct and lawful decisions.

Ms Byrne said a mistake on voting day affected the democratic process and denied Mr Garcia da Silva the right to exercise his franchise.

She also expressed disappointment that he had not received a response from the returning officer to his complaint, which had compounded his sense of unfair treatment and was “disrespectful.”

Ms Byrne said she had made the direction about improved signage as compensation was not sufficient to remedy the discrimination that had occurred.

Ms Byrne said she was mindful that the complainant could have made inquiries of the person in charge of the polling station or that he could have returned before polling closed at 10pm to exercise his right to vote.

She said her order about improved signage should reduce the risk that a member of the public entitled to vote would be prevented from doing so.

Separately, the WRC ruled that the returning officer had not discriminated against Ms de Almeida Silva, as it was clear the mistake had been resolved quickly.

Ms Byrne said she was satisfied that Ms de Almeida Silva had suffered no detriment, even if it might have been due to her own tenacity.

However, she ordered the returning officer to arrange training for poll clerks and presiding officers to ensure they understand the rights of voters based on their citizenship and residency.