The Supreme Court, in a judgment with implications for the conduct of future elections, has ordered a total recount of votes cast in last year’s local elections for the Listowel electoral area.
All five judges unanimously upheld the claim of former Senator Dan Kiely who was a candidate for the Listowel area.
The judges agreed there was a “mistake” in the conduct of the local election within the meaning of the relevant provision of the 1974 Local Elections Act and this rendered it unlawful.
The mistake arose from the inclusion in the count of votes which contained a sequence of numbers not starting with the number ‘1’.
Mr Kiely had brought a petition to the Circuit Court against Kerry County Council challenging the result but his petition was dismissed.
The matter was referred to the Supreme Court on grounds it raised legal issues of public importance.
Four of the judges also ruled that Dan Kiely, who lost out on a seat for the Listowel district by just two votes, was entitled to a recount. Mr Justice Peter Charleton dissented , saying Mr Kiely had not discharged the burden of proof necessary and that he could have sought an order to inspect the votes but did not do so,
In his judgment, with which the majority court agreed, Mr Justice Frank Clarke ordered all votes containing a sequence of numbers not beginning with ‘1’ must be excluded from the recount.
That recount should be a full count from the start including re-examination of the validity of all ballots and re-mixing of the ballot papers.
The core issue in the case was whether a 3-4-5 marked on a ballot paper, in the absence of any marking of a number ‘1’ preference, can be deemed a valid vote in an election.
The issue arises because of a pheonomenon noted by election observers where, on days when there is more than one election, many people cast their 1st and 2nd preference on one ballot paper, and then put their third, fourth and fifth preferences on the other ballot paper.
In Mr Kiely’s case, the local elections took place on the same day as the European Parliament elections and the deputy returning officer included ballot papers containing a sequence of numbers not starting with ‘1’ in the count.
A memorandum of guidance for local authority returning officers states this practice can be accepted as valid on days when there is more than one election.
Mr Kiely argued the numbers 3 or 4 can never be deemed a number one, and the disputed papers should have been excluded.
Kerry County Council submitted the disputed sequence was capable of being interpreted as giving a first preference to a candidate against whose name the number 3 was written.
But all five Supreme Court judges ruled that the inclusion of votes in this sequence amounted to a mistake.