The protocol surrounding questionable or spoilt votes and the acceptance of number 3 as number 1, number 4 as number 2 and so on in Listowel, Co Kerry, are among a number of issues that the Supreme Court will be asked to determine.
Papers were lodged last week by the former Fianna Fáil senator Dan Kiely and his legal team, barrister Elizabeth Murphy along with solicitor Paul O’Donoghue who was also a former Fianna Fáil Kerry County councillor.
All parties, including a number of the 15 candidates in the Listowel local election, the minister for local government, the DPP and Kerry County Council have also been served with court papers.
Former FF man Mr Kiely, who ran as an independent for the first time in the Listowel area, failed to be elected by two votes — losing out to a Fine Gael candidate.
He brought a petition to the Circuit Court looking for a full recount and asking that the results of the election be deemed invalid.
Mr Kiely claimed he was only allowed “a partial recount”, as the 230 or so spoilt or questionable ballots were not included and he was refused access to them.
He was not present during the adjudication process of the spoilt votes and was not informed it was taking place, he told the Circuit Court in Tralee in June.
Returning officers said they were under no obligation other than an announcement over the public address system to inform candidates about the adjudication process on spoiled votes which took place just before the first count in the centre in Tralee.
They accepted sequences beginning with the number 3 as number one because a European ballot was also under way on the same day and voters would have been confused and they did not want them disenfranchised.
Judge Carroll Moran held with them, saying the returning officers were entitled to allow papers beginning with number 3 into the vote.
Judge Moran also said returning officers were not only “not obliged”, but were “not entitled” under legislation to include doubtful ballots in a recount.
The role and the amount of discretion resting with the returning officer is also central to Mr Kiely’s appeal to the Supreme Court .
Kerry County Council and Fianna Fáil opposed Mr Kiely’s petition, but they did not look for costs in the Circuit Court. Fine Gael asked for costs, but were refused.
The only previous appeal to the Supreme Court concerned a Dáil not a local election and Kiely’s case is widely believed to be the first such since the passing of the Electoral Act, 1923.