Kerry County Council faces six-figure bill over election recount

Kerry County Council is facing a six-figure bill after the Supreme Court ordered it to pay the costs of a successful appeal by former Fianna Fáil senator Dan Kiely for a total recount of votes in the 2014 local elections for the Listowel area.

The recount is to be held on Wednesday. Mr Kiely (Ind) lost out on a seat for the Listowel district by just two votes to Mike Kennelly (FG).

The delay in holding the recount, since ordered in December by a Supreme Court majority, related to difficulties in finding a suitable venue, said Michael McDowell, for Mr Kiely.

In that majority 4-1 judgment affecting the conduct of future elections, the Supreme Court found there was an unlawful “mistake” in the conduct of the Listowel local electoral area because votes were included with a sequence of numbers that did not start with the number ‘1’.

The court directed a full recount from the beginning in which the validity of all ballots must be re-examined. Those containing a sequence of numbers not beginning with ‘1’ must be excluded.

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, could be deemed a valid vote. The issue arose because, on days when there is more than one election, many people cast first and second preferences on one ballot paper and put their third, fourth, and fifth preferences on the other.

The Listowel area local election was held on the same day as elections for the European Parliament.

The deputy returning officer included ballot papers containing a sequence of numbers not starting with ‘1’ in the count.

The Supreme Court heard that a memorandum of guidance for local authority returning officers states that they 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, and so on even when the instructions on the ballot paper say write ‘1’ beside the candidate of your first choice.

The environment minister was not joined as a respondent to the case but made submissions at appeal stage opposing Mr Kiely’s claim. When the case returned before the Supreme Court yesterday to address costs issues, counsel for the minister said his client would pay his own costs but opposed any costs orders being made against him.

Mr Justice Peter Charleton, who had dissented from the majority decision ordering a recount, said he was “puzzled” by the minister’s position when his department “says what should be done by returning officers in elections”.

The council did not seek costs against the minister and did not oppose Mr Kiely’s application for his costs in the Supreme Court, but argued he was not entitled to have the council meet his costs in the circuit court. The court ruled the council should pay the costs of the Supreme Court appeal but made no order for costs of proceedings in the Circuit Court, meaning the sides pay their own costs there.