Fears of fraud cast shadow on Web voting

Online vote-swapping and vote-selling are dangers in our dash towards internet voting, writes Denis Kelleher.

Votes will be recorded and counted electronically for the first time in today's election, in what is an exciting development for Irish democracy.

In the past the electorate and candidates may have had to wait days before election results are known. However, in Dublin North, Dublin West and Meath the result should be known before counting begins in other constituencies. Virtually all the electorate in these constituencies are travelling to a polling station to cast their vote, but the future may see the introduction of internet-based voting where the electorate would vote online from their homes or even using their mobile phones.

A race appears to be developing in the rest of Europe to be the first country to introduce widescale internet voting. Estonia is the most ambitious, with plans to introduce internet voting for its next general election in 2003, Britain has plans to introduce internet voting in future general elections, although not the next one.

A serious problem with internet voting is that, like internet commerce, it is open to manipulation and fraud, but a dubious election is far more difficult to put right than a dubious online purchase.

One internet innovation that may force a change in Irish electoral law is vote-swapping. This idea first came to the fore in the 2000 US presidential election, and similar sites sprung up in the 2001 British general election.

A good example of this was the www.tacticalvoter.net website in the UK, which suggested Liberal Democrat supporters in marginal Labour seats would agree to vote Labour, in return for Labour voters in marginal Liberal Democrat seats agreeing to vote Liberal Democrat. The object was to limit the number of Conservative candidates elected as a result of a vote split between Labour and the Liberal Democrats.

The novelty of this activity attracted some interest, not least from the electoral authorities, and there were unverifiable claims that it led to a couple of Conservative MPs losing their seats. Vote-swapping contains obvious flaws; for one thing agreements are unenforceable, at least while voters must travel to polling stations to vote, where the secrecy of their ballot is protected by law.

The complexities of the proportional representation system and the existence of multiple-seat constituencies, mean that if vote-swapping became a reality then it could have quite a noticeable impact on future Irish elections. It is not definite that vote-swapping would be illegal in Ireland: arguably agreeing to vote for one candidate if someone else votes for another does not amount to the giving of "valuable consideration".

If this is so, then the offence of bribery under the Electoral Acts would not apply. It could be difficult to apply other offences such as the giving of misleading statements, undue influence or breach of secrecy to internet vote-swapping. Creating a specific offence to deal with it might be problematic, as it would be hard to settle upon a suitable definition of vote-swapping.

Political parties already try to "manage" their vote, by trying to determine where voters will send their first-, second- and third-preference votes. Independents will hope that these transfers will get them elected. Simply extending the definition of "valuable consideration" to include the promise to vote a particular way might have an impact far beyond an Internet vote-swapping site.

One internet electoral innovation that is definitely illegal is that of vote-selling. This came to prominence with the launch of the voteauction.com site in the US in 2000. Over 1,000 American voters registered with this site and sought a collective $13,000 for their votes. However, several US states sought to have this site closed down. Setting up a similar website in Ireland would definitely be an offence, as would be offering to sell a vote on such a website or offering to buy a vote online. Anyone who was convicted of such an offence under the electoral Acts could be punished by a sentence of up to two years in jail and a fine.

It may be a while before Ireland sees internet voting in a Dáil election as experiments in internet voting in other jurisdictions have been disappointing. Some 200 members of the American military did vote online in the 2000 US Presidential election, but at a cost of $74,000 per vote.

An experiment in internet voting was carried out in this months local council elections in the UK, but it had very limited impact.

If Ireland is ever to introduce internet voting it might be tempting to introduce it in Seanad elections, which are held by postal ballot anyway.

The problem with doing so is that the requirement of a "secret postal ballot" is one specifically imposed by the Constitution and it might be argued that a referendum would be required before the definition of "postal ballot" could be extended to electronic mail.

Denis Kelleher is a practising barrister and co-author of Information Technology Law in Ireland (Butterworths : Dublin). http://www.ictlaw.com