The case centres on whether a 3-4-5 written on a ballot paper in the absence of a number ‘1’ preference marked on the ballot paper can be deemed as a valid vote in an election. The local elections took place on the same day as the elections for the European Parliament.
On days where there are more than one election, the Supreme Court heard many people cast their first and second preference on one ballot paper, before putting their third, fourth and fifth on the other ballot sheet.
Under a memorandum of guidance of local authority returning officers, returning officers are entitled, on multiple election days, to accept as valid and admit to the count ballots containing the series of number 3,4,5,6 etc even when the instructions on the ballot paper say write the number one beside the candidate of your first choice. The action is before a five-judge Supreme Court because the case raises issues that could effect the outcome of elections.
Mr Kiely, a former Fianna Fáil politician, contested the May 2014 local elections as an independent, but narrowly lost out to a Fine Gael candidate for the last seat. Another candidate finished five votes behind Mr Kiely.
They were two of the 15 candidates contesting the Listowel Electoral Area where seven seats were up for grabs on Kerry County Council. A recount did not change the result.
Following the result Mr Kiely brought a petition before the Circuit Court, against Kerry County Council, challenging the result. His petition was dismissed by the circuit court.
Mr Kiely, represented by solicitor Paul O’Donoghue, appealed the decision, which is being heard by the Supreme Court on the grounds that it raises points of public importance.
All the other candidates who contested the election in the Listowel area were notice parties to the action.
In his submissions to the Supreme Court yesterday Michael McDowell, counsel for Mr Kiely, said it was his client’s case that “as a matter of law” such votes could not be deemed valid. “A three does not equate to a number 1 on a ballot paper,” counsel said.
Mr Kiely’s challenge is also brought on grounds including that he was prevented from looking at about 200 spoiled votes in the electoral area prior to the recount. He claimed neither he nor his agents were present to scrutinise the spoiled votes at the outset of the count, as he was not aware it was taking place at the time.
Opposing the action, Denis McDonald, for Kerry County Council, said on days where there were more than one ballot paper many voters put their first and second preferences on one paper, before putting their third, fourth or fifth preferences on the other ballot paper.
Counsel said this phenomenon had been noticed some years ago by returning officers all over the country on days when there were two elections and multiple candidates on each ballot paper. On days of multiple elections returning officers are under the guidelines governing elections and have the discretion to deem valid votes where a clear sequence of preference is shown on ballots papers that are not marked with a number 1.
Following the conclusion of submissions the five-judge Supreme Court reserved its decision.