The Supreme Court has held that a sequence of numbers such as 3, 4, 5 on a ballot paper does not clearly indicate a first preference under the local election counting rules. In a judgment delivered on 17 December 2015, O’Donnell J. agreed with the Court’s principal ruling and concluded that the evidence in Dan Kiely’s appeal justified a fresh count in the close Listowel election.
The appeal arose from the local elections held in Listowel on 23 May 2014. It was brought by case stated from the Circuit Court under the Local Elections (Petitions and Disqualifications) Act 1974. The Supreme Court was asked whether a number other than 1, appearing first in a sequence beside candidates’ names, could count as a mark clearly indicating a first preference under article 80(2)(b) of the Local Election Regulations 1995.
O’Donnell J. said the ballot had to be assessed on its own terms. A number such as 3 normally implies that there is a 1 and that the two represent different preferences. Although the fact that another election took place on the same day could offer a plausible explanation for a sequence beginning at 3, the judge said that possibility did not make the first number a clear indication of first preference. It might suggest that preference, but suggestion was not enough under the rule.
The judge said the returning officer has latitude when deciding how to treat individual ballot papers, but no discretion to interpret the law. He also noted that the guidance issued to local returning officers suggested consulting election agents about such ballots, which, in his view, indicated that their meaning could be open to doubt.
The question of remedy divided the judges. Charleton J. considered the evidence did not establish that the disputed votes were likely to have affected the result, and considered that inspection of ballot papers before the petition might have enabled the appellant to provide more evidence. O’Donnell J. disagreed. He said the election was extremely close and that the limited evidence was sufficient to show a likely effect. He considered a fresh count would resolve the uncertainty without requiring a new poll.
O’Donnell J. agreed that the count should restart under court supervision from the opening of the ballot boxes. He noted that restarting the proportional representation count could introduce an element of randomness that might affect the outcome. The judgment records agreement among O’Donnell, McKechnie, Clarke and Charleton JJ. on the principal legal ground; O’Donnell J.’s reasons on the likelihood of impact and entitlement to relief were his own position in addressing Charleton J.’s contrary view.