Recount ordered in Listowel elections

A total recount of votes cast in the May 2014 local elections for the Listowel electoral area of North Kerry has been ordered by the Supreme Court.

Five judges of the Supreme Court yesterday unanimously upheld former senator Dan Kiely’s claim that there was 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, to the extent that it 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’.

The judgment has implications for the conduct of future elections.

Four of the judges — the Chief Justice, Ms Justice Susan Denham, Mr Justice Donal O’Donnell, Mr Justice William McKechnie, and Mr Justice Frank Clarke — also ruled that Mr 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 on the recount issue.

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 beginning, including re-examination of the validity of all ballots and remixing of the ballot papers, he said.

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.

The issue arises because of a phenomenon noted by election observers where, on days when there is more than one election, many people cast their first and second preference on one ballot paper, before putting 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 European Parliament elections and the deputy returning officer included ballot papers containing a sequence of numbers not starting with ‘1’ .

A memorandum of guidance for local authority returning officers states returning officers are entitled, on multiple election days, to accept as valid and admit to the count ballot papers containing the series of numbers 3, 4, 5, etc, even when the instructions on the ballot paper say write the number one beside the candidate of your first choice.

Mr Kiely argued the numbers 3 or 4 can never be deemed a number one, there was therefore no mark on the disputed papers indicating the voter’s first preference, 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.