Dan Kiely, aged 71, said he had not been notified about the examination of spoiled votes in the Listowel area, in which he was an independent candidate, and claimed that a recount, which he was granted, should also have re-examined the spoiled votes.
Returning officer Michael McMahon refused to have the spoiled votes re-examined during the recount, and Elizabeth Murphy, counsel for Mr Kiely, claimed at Tralee Circuit Court that he had been granted only a partial recount.
He had been in a three-way contest for the last two seats, but was edged out by Jimmy Moloney, Fianna Fáil, and Mike Kennelly, Fine Gael, who were just five and two votes ahead of him, respectively.
Mr Kiely, of Doonard, Tarbert, Co Kerry, is bringing the case against Kerry County Council under the Local Elections (Petitions and Disqualifications) Act 1974.
The court was told 230 votes were ruled upon in the adjudication process, before the first count on May 24, and 173 were excluded. Some 57 votes were stamped and allowed into the full count.
Mr Kiely said his team was not happy with some of the votes allowed in, which became apparent during the count. Some had no number ones, and began at number 3 or 4, but were still counted as number ones.
“We weren’t happy with some of the ballots in the mix and when I questioned the teller, they said they were adjudicated on and stamped,’’ he said.
Mr Kiely, a county councillor for 25 years and a senator for 16 years, said neither he, nor any member of his election team, was present at the count on May 24, when the returning officer invited candidates, or their agents, to attend the scrutiny of doubtful votes.
He said he was not aware the adjudication of spoiled votes would take place before the actual count began.
The court heard there is nothing written in legislation about the procedure for examining questionable ballot papers and the practice of returning officers differs widely.
Joe Revington, one-time tally chief for former Labour leader Dick Spring and now a senior counsel, recalled a dramatic night in 1987 when Mr Spring held his seat by four votes, votes that were questionable, he added.
Mr Revington, who described himself as a “political junkie”, quoted a High Court ruling that in a recount, all votes should not only be counted again, but also re-examined.
Returning officer for Cork, Martin Harvey, a witness for Kerry County Council, said he announced adjudication of spoilt votes through the public address system and the adjudication was an important and transparent part. He would delay it if a candidate requested him to do so for some minutes, but only for some minutes. Generally, adjudicated votes were not re-examined during recounts, he said.
The courtroom was packed with political, legal and local authority officials.
Fianna Fail and Fine Gael are represented by senior and junior counsel and a number of the 15 independent candidates also have legal teams.
Mr Kiely’s legal team includes the former Fianna Fáil councillor and solicitor Paul O’Donoghue.
The case continues today before Judge Carroll Moran.