Supreme Court orders all votes in Listowel local elections to be “counted afresh”

About this case:

• Judgment:
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Dan Kiely had challenged the legality of how the returning officer in charge of the running of the election had conducted certain aspects of the overall count of the vote.

Following his failure before the Circuit Court, Mr Kiely had appealed to the Supreme Court.

In essence, the case concerned the decision of the returning officer to count as valid voting papers which had the numbered sequence 3, 4 and 5, or 4, 5 and 6.

Mr Kiely argued that such papers contained no evidence of the elector’s first preference for a candidate, and therefore should not have been counted.

The defendant argued that as there had also been a European Parliamentary election the same day, it was likely that the elector’s had simply began their numbering on the European Parliament paper, and continued on the local election paper.

In the interests of not disenfranchising electors, and citing aMemorandum for the Guidance of Local Authority Returning Officers, which allows for papers marked 3, 4 and 5 etc to be counted, the returning officer therefore allowed such papers.

However, Mr Kiely argued that this decision was in breach of article 81(1) of the Local Elections Regulations 1995, which requires that a first preference be indicated by a mark which, in the opinion of the returning officer, clearly indicates a first preference.

Although Mr Kiely did not specify on what specific legal grounds he was challenging the election, the Supreme Court Judge Mr Justice William M. McKechnie interpreted his argument as falling under s5(1)(a) of the Local Elections (Petitions and Disqualifications) Act 1974, which allows elections to be challenged if “affected by error or was not completed or was otherwise not conducted by a returning officer in accordance with law”.

It was noted that even if Mr Kiely succeeded on that ground, he must also show under s5 of the 1974 Act that the issue was likely to have affected the result of the election.

The burden of proof in regard to both arguments rested with Mr Kiely.

In considering the validity of the papers, the Judge observed that it was beyond controversy that for a paper to be valid it must have recorded a first preference, and indeed this requirement was contained within Article 80(2) of the 1995 Regulations.

The question was therefore whether the returning officer, following Article 80(1) of the Regulations, was of the opinion that the papers “clearly indicate” a first preference for some candidate.

The defendant argued that the Court should be slow to interfere with the returning officer’s decision in this regard.

However, the Judge found that while due and proper regard should be had for the position of the returning officer, the approach adopted should be that of Lynch v. Cooney I.R. 337.

This case identified that a decision should be based on an opinion that is bona fide held, factually sustainable, and not unreasonable.

Thus, a decision should be in accordance wit the statutory parameters within which the underlying power is conferred.

The Judge observed that as this was an important factor in its own right, it might be worth adding a fourth requirement, that an opinion must be within vires.

In the present case, the Judge found that the decision of the returning officer could not be said to fall within the range of statutory authority vested in him, as he could not as a matter of law have concluded that the disputed papers “clearly identified” a first preference for any candidate.

To arrive at such a conclusion, the Judge found, was to disregard a number of possibilities which offer realistic alternative explanations for why voters may have adopted a sequence approach which did not identify a first preference.

Finally, while acknowledging the returning officer’s desire not to disenfranchise voters, the Judge noted the “disturbing possibility” of attributing a vote to a candidate the voter never wished to vote for.

Turning to the issue of whether the issue was “likely to have affected the result of the election” under s5 of the 1974 Act, the Judge notedThomas Dillon-Leetch v. Sean Calleary & Ors, (Supreme Court, 31st July, 1974), in which it was stated that an error which is “electorally ineffective” will not be sufficient to set aside the correctly exercised constitutional right of the rest of the electorate to elect their representative.

The Judge noted that such a question was an issue of fact, citing Re Pembroke Election Petition 2 I.R. 436.

The Judge considered the s5 requirement as having a number of aspects: “one relates to impact, a second relates to outcome and a third describes the level to which both must be established. By “impact” I mean “affect” and by “outcome” I mean “election result”. This is the statutory obligation which must be satisfied on the balance of probabilities.”

Thus, the petitioner must identify consequences, referable to the result, which are not electorally inconsequential.

Discussing the evidence, it was observed that it had not been possible to stablish precisely what number of the 57 disputed votes, which the returning officer marked as valid, involved the type of sequencing formula as is in issue in this case.

While Mr Kiely could have obtained an order under Article 93 of the 1995 Regulations, he had not done so.

However, the Judge noted the evidence of the deputy returning officer, Mr McMahon, and Ms Marie O’Gorman, which demonstrated that there were at least some votes which were involved in the relevant sequencing formula.

The Judge therefore found that “given the margin by which Mr. Kiely lost the seat…I have come to the conclusion that there is sufficient evidence for concluding that if such votes were admitted, the same could have had an effect on the result.”

He observed that “Given the type of proportional representation applying in this country, even a very small number of votes could have an accumulative effect on earlier transfers or eliminations, which, as the counting proceeds, could have an impact on the outcome.”

Thus, he was satisfied that Mr Kiely discharged the second requirement of s5.

As the Judge had found that court intervention was therefore justified, he set out the powers under s8 of the 1974 Act, which allow for the court to order “(a)that all the votes cast at an election shall be counted afresh, or (b) that all the votes so cast in a particular local electoral area shall be so counted”.

In this case, option (b) was found to be what was required, thus involving a “counting afresh” of all the votes cast in the Listowel electoral area.

The Judge concluded that: “Once this process has been completed under the direction of the Circuit Court, that court has jurisdiction to make a final order under and pursuant to the provisions of s.14 of the 1974 Act, which includes a declaration as to the correct result if the outcome so permits.”