The Supreme Court has ordered a fresh count of all votes cast in the Listowel local electoral area in 2014, after finding that a returning officer acted outside his legal authority when he accepted certain ballot papers marked with preference sequences beginning above one.
The judgment, delivered by Mr Justice William M. McKechnie on 17 December 2015, allows Dan Kiely’s appeal to the extent that a fresh count must take place. It does not declare who was elected. The matter was remitted to the Circuit Court to supervise the count and make a final order, including a declaration of the correct result if the count allows.
Kiely, an unsuccessful candidate, challenged the counting of papers marked with sequences such as 3, 4 and 5 or 4, 5 and 6, without any mark indicating a first preference. The deputy returning officer treated these as valid, reasoning that voters may have continued numbering from the ballot paper for the simultaneous European election. The Circuit Court had rejected Kiely’s challenge.
The Supreme Court held that the Local Election Regulations required a paper to clearly indicate a first preference. The returning officer could not conclude that these sequences did so: the explanation that voters had continued numbering between elections was a possibility, but not a clear indication on each individual paper. Other explanations were possible, including that a voter had not completed the ballot or had deliberately given no higher preference. The Court said admitting such papers could wrongly attribute a preference to a candidate.
The Court also found that the error was likely to have affected the election result, as required by the Local Elections (Petitions and Disqualifications) Act 1974. The precise number of affected papers among 57 disputed papers accepted as valid was not established. However, evidence from the deputy returning officer and a candidate’s representative indicated that at least some papers had the sequences in question. Given the narrow margins and the transferable-vote system, the Court concluded that those votes could have affected the result.
The fresh count is limited to Listowel, where the petition and evidence concerned the disputed practice. The Supreme Court said it should include all votes cast in that electoral area and take place under the Circuit Court’s direction and control. The Court did not order a recount across County Kerry, decide whether Kiely should receive a seat, or resolve other complaints that were not pursued on appeal.