Recount order in Listowel is ‘legal history’

A Circuit Court in Co. Kerry yesterday ordered a recount of all votes cast in the Listowel Municipal District during the 2014 local elections.

The landmark order was made at Tralee Circuit Court following a series of legal proceedings by a defeated candidate, ex-Fianna Fáil senator Dan Kiely, who ran as an Independent. The court ruled the count is to take place “as soon as possible” in the original venue, John Mitchel’s GAA club in Tralee.

Despite an objection from Mr Kiely’s legal team, Judge Thomas E O’Donnell ordered the returning officer to be appointed by Kerry County Council. The judge said he was anxious the process would be carried out “in the normal fashion” without too much interference from the judiciary.

Mr Kiely had taken the proceedings against Kerry County Council. He had lost out on a council seat by two votes. He had initially petition the Circuit Court for a recount but failed.

Mr Kiely appealed to the Supreme Court, and, in December 2015, it unanimously upheld his claim there had been a “mistake” in the conduct of the local election, within the meaning of the relevant provision of the Local Elections (Petitions and Disqualifications) Act 1974 such as rendered it unlawful. It ordered a total recount. It was claimed the mistake arose from the inclusion in the count of votes which contained a sequence of numbers not starting with the number ‘1’.

Yesterday, Elizabeth Murphy, counsel for Mr Kiely, said the matter was now to be determined by the Circuit Court. She told Judge O’Donnell her client was anxious a count “afresh” would proceed as soon as possible.

Henry Downing, for Kerry County Council, said the count afresh was “a full count from the beginning, including re-examination of all ballots” and it had to start with “a remixing “of all the votes, including fresh scrutiny of votes. Section 8 of the electoral acts set down what had to be done, and that the matter was now “under the direction of the court,” Mr Downing said.

The Circuit Court heard the Supreme Court had ruled votes not beginning with the number 1 sequences were to be excluded, although votes with ticks may be included.

Ms Murphy objected to the council appointing the returning officer. However, Judge O’Donnell, who was told it was the first time in the history of the State in which such a count afresh had been ordered, said he had no wish to have further legal history made.

The judge said he would only wish for the courts to be involved at the start and at the end of the count, and would wish the process itself was carried out in “the normal fashion”. He was concerned about the level of judicial involvement in an electoral matter.

In the event there was a difficulty about validity of certain votes, that would come before him for determination, if necessary, he said.

Judge O’Donnell said he would like the recount organised as soon as possible and agreed with Mr Downing it would be prudent to publish advance notice. The council is to give a week’s notice. Judge O’Donnell reserved costs.

Almost 15,000 ballots will be recounted. There were 15 candidates for seven seats and a handful of votes separated three candidates.

Meanwhile, the December meeting of the 33-member county council had heard it was in “uncharted waters” but the council believed it was a valid entity, even though one of its four electoral areas was in doubt.


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