Supreme Court orders recount of votes cast in Listowel local election

The court unanimously upheld a claim by former Senator Dan Kiely that a mistake in conducting the election had rendered it unlawful.

Votes which contained a series of preferences but did not start with number ‘1’ were included, which was determined to be a “mistake” within the meaning of section 5(1)(a) of the Local Elections (Petitions and Disqualifications) Act 1974.

The ballot paper in question was marked only 3, 4, and 5.

Guidance provided to local authority returning officers stated that the smallest number on the ballot - in this case, 3 - could be interpreted as the first preference on days where more than one election is taking place at the same time.

In his judgment, Mr Justice Frank Clarke explained: “A phenomenon has been observed by those involved in counting the votes at such elections that a number of ballot papers turn up which have a sequence of numbers not beginning with ‘1’ and often involving a sequence starting with a ‘3’, ‘4’ or ‘5’.

“The inference that is drawn is that voters have started on one ballot paper and written, for example, ‘1’, ‘2’ and ‘3’ and have then continued on to the other ballot paper and written, for example, ‘4’, ‘5’ and ‘6’.”

However, the court agreed that the guidance did not have “any legal effect” and ruled that ballots with a sequence of preferences not beginning with ‘1’ are invalid and should be excluded from the recount.