The arguments for having the Bill introducing such a system referred to the Supreme Court before being signed into law are strong, writes Jim Duffy.
The clock is ticking as the Government rushes to enact a law allowing electronic voting in June's European and local elections. While it believes it can get the Bill through the Dáil and Seanad and implemented in time, it may have forgotten one possible roadblock on the way, the President.
Should Mrs McAleese refer the Bill to the Supreme Court to test its constitutionality, a process that could take up to 60 days, the Government's timetable could be thrown into chaos, with an unbudgeted-for delay possibly of weeks, forcing the Minister for the Environment, Mr Cullen, back humiliatingly to the tried and trusted method of voting and manual counting in June.
In making her judgment call, we can be sure of one thing - that any inconvenience to the Government, embarrassment to the Environment Minister, or procedural problems in the holding of the elections following any reference to the courts would not influence the President's decision. Presidents take a constitutional oath to fulfil the duties of the job, and one such duty on occasion is the reference of Bills if they judge it necessary, no matter how much inconvenience it may cause to the government.
President de Valera forced a humiliating climbdown by then finance minister Charles Haughey in the mid-1960s by merely hinting at referring a controversial Haughey Bill. And President Ó Dálaigh referred two highly sensitive anti-terrorist Bills to the courts, and considered referring a third, to the anger of the then coalition government.
While some think that presidents refer any Bill to the courts where any doubt exists as to its constitutionality, in reality all eight presidents, correctly, have followed a less rigid approach. The reason is simple: if a presidentially-referred Bill is judged constitutional by the Supreme Court, its constitutionality can never be challenged again, even where a glaring constitutional problem becomes obvious later. So judges and presidents prefer to test the actual workings of Acts, not theoretical flaws of Bills, in constitutional cases brought by ordinary citizens. Presidential references of Bills are rare, and usually follow the rule "refer only if absolutely necessary".
The problem for the Government is that the e-voting Bill falls into this category. Some Bills are seen as so sensitive in terms of their long-term impact, or problems that would arise if the Bill is later found unconstitutional, that one has to be certain of their constitutionality from the start.
Hence President Hillery referred the Housing (Private Rented Dwellings) Bill, 1981, and the Adoption Bill, 1988, to the courts. Had either been found retrospectively unconstitutional, hundreds of adoptions or tens of thousands of rental contracts could have been invalidated, producing chaos.
Electoral laws are seen as similarly sensitive. It would be a constitutional nightmare if an entire election had to be nullified because the law that underpinned it was unconstitutional. Not just the election might be invalid, but every decision taken by the invalidly-elected councillors, TDs, MEPs or presidents. Which is why Presidents de Valera and Hillery referred the Electoral (Amendment) Acts, 1961 and 1983, to the Supreme Court.
Indeed, de Valera's reference of the former Act highlights the independence of the presidency in referring Bills. His reference was greeted with blind fury by Seán Lemass's government and local government minister Kevin Boland, who could not believe that Dev, their chief, would dare embarrass them by referring one of their Bills. But he did.
That changing to electronic voting - to a system in which the most elementary requirement in vote-taking, an independent method of objective verification, is suspect - is not merely a minor procedural change but a electoral revolution seems lost on the Fianna Fáil-PD Government.
Elections in democracies are sacrosanct. Every step of the process - the methodology of voting, voter verification of their votes, the confidentiality of the ballot, even the right of a citizen if they choose to spoil a vote (arguably a deeply foolish and irresponsible act, but nevertheless a right), the accuracy of the count - requires the absolute confidence of as close to 100 per cent of the electorate as possible.
A system that breaches any of the fundamental requirements of democratic accountability, openness, reliability and trustworthiness is a sure candidate for constitutional challenge by a citizen after the election. The arguments for having the Bill introducing such a system referred to the Supreme Court before being signed into law are very strong.
The Government may opt to ignore public disquiet on the proposed system, deep Opposition unease, queues of computer experts stating that electronic voting is simply not as reliable as non-computer expert Ministers think, and editorials condemning the Government's determination to push head with the scheme. However, it may well find that President McAleese, like her predecessors, proves an unexpected problem, telling the Government: "No, you aren't infallible. This has to be checked by the Supreme Court first." Maybe Mr Cullen should get out the polish and begin cleaning the old ballot boxes and have them on standby just in case.
Jim Duffy is a writer on constitutional affairs.