A Supreme Court dissent in an appeal over the 2014 Listowel local election says an error in admitting 57 disputed ballot papers was not enough, by itself, to establish that the election result was affected.
Mr Justice Charleton delivered the dissent on 17 December 2015 in Dan Kiely’s appeal against Kerry County Council. He said the majority considered that including ballot papers where the numerical preferences began after “1” was “likely to have affected the result of the election”, given the narrow differences between the last three candidates.
The judgment says the returning officer had admitted 57 of 230 doubtful ballots and marked them in green biro, replacing the voters’ “3”, “4”, “5” and later numbers with “1”, “2”, “3” and so on. The officer said the corrections were intended to make clear how the ballots would be treated in later counts. A further 173 doubtful ballots were rejected and were not included in the count.
Charleton said the 57 admitted ballots could have been identified and examined to calculate whether excluding them would have changed the result. That examination was not carried out. He concluded that the petitioner had not proved, on the balance of probabilities, that the error produced a false result, and was not entitled to a remedy on his analysis.
The dissent also addressed which markings can count as a first preference. Charleton said a clear mark such as a tick or cross, followed by “2”, “3” and later preferences, could be valid. But he considered that a numerical sequence starting at a number greater than “1” did not comply with the rules. He noted evidence that some voters may have continued their numerical sequence from a European election ballot onto the local election ballot when the elections were held together.
On recounts, Charleton agreed with the trial judge that rejected ballots could not be reconsidered as part of a recount. He said the time to raise objections to the scrutiny process was during its early stages and that candidates had a duty to attend, rather than the returning officer being required to ensure they were present.
The judgment identifies the proof issue as the point of Charleton’s dissent. Its account of the majority’s view and his conclusions should be read as distinct positions within the appeal.