The Supreme Court found that including Listowel local election ballots with numbered preferences but no “1” or “one” was a legal mistake, and concluded it was reasonably possible that the error affected the result. In the judgment delivered on 17 December 2015, Mr Justice Clarke proposed that all votes be counted afresh, with the questioned ballots excluded from allocation to candidates.
Dan Kiely had lost the final seat on Kerry County Council by two votes. He brought an election petition against the council, which defended the returning officer’s decision to count ballots whose numbered sequence began with a number other than one. Fourteen other candidates were named as notice parties.
The Court held that, although such sequences may often result from voters carrying their numbering across two ballot papers, that explanation could not establish a clear first preference on any individual ballot. Voters might have omitted “1” for other reasons. The Court said returning officers may receive deference on judgments about where a mark is placed, but the legal question here was whether a number other than one could clearly indicate a first preference. It could not, the judgment said.
The materiality threshold was also met, in the view expressed by Clarke J. The admitted questionable ballots numbered 57, though the evidence did not establish how many had the disputed numbering sequence. With only two votes between candidates on the final count, Clarke J found a realistic possibility that excluding enough of those ballots could have changed the outcome, taking account of the effects that changes can have across a proportional representation count.
Clarke J said the fresh count should begin again with all ballots, including a re-examination of ballot validity and remixing, while excluding the disputed sequence ballots from allocation. He reasoned that the statutory phrase “counted afresh” required starting at the beginning; preserving the original bundle order, as in a recount, was not what the legislation prescribed. The judgment explains Clarke J’s proposed direction. The supplied text does not include a formal order of the Court or confirm the count’s eventual result.