Monday 24 October 2016

Former Senator Dan Kiely challenges results of local elections after losing out on seat

Published 16/10/2015 | 18:08

Dan Kiely
Dan Kiely

FORMER Senator Dan Kiely is challenging the result of last year's local elections where he lost out on a seat for Kerry County Council by just two votes.

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The Supreme Court Friday reserved judgment on his appeal of a lower court's decision to dismiss his challenge.

The action centres around if a 3-4-5 written on a ballot paper in the absence of a number '1' preference marked on the ballot paper can be deemed as a valid vote in an election.  The 3 is then regarded as a first preference.

The local elections took place on the same day as the elections for the European Parliament.

On days where there are more than one election, the Supreme Court heard, many people cast their 1st and 2nd preference on one ballot paper, before putting their third , fourth and fifth preferences on the other ballot sheet.

Under a memorandum of guidance, Returning Officers are entitled, on multiple election days, to accept as valid and admit to the count ballots containing the series of numbers 3,4,5,6 etc even when the instructions on the ballot paper say write the number one beside the candidate of your first choice.

The action was before a five judge Supreme Court as it raised issues that could affect the outcome of elections.

Mr Kiely, a former Fianna Fail politician, contested the May 2014 local elections as an independent, but narrowly lost out to a Fine Gael candidate for the last seat.  Another candidate finished five votes behind Mr Kiely.

They were two of the 15 candidates contesting the Listowel Electoral Area where seven seats were up for grabs on Kerry County Council.  A recount did not change the result.

Following the result, Mr Kiely challenged the result in the Circuit Court which dismissed his petition.

The decision was appealed directly to the Supreme Court on grounds it raises points of public importance.

Among the arguments made were that the Returning Officer for the Listowel Area was not entitled to include votes containing the sequence 3,4,5 etc that do not contain the number 1.

Evidence was given that a number of such votes were deemed valid for the election.

In submissions, Michael McDowell SC, for Mr Kiely, said it was his client's case that "as a matter of law" such votes could not be deemed valid.   "A three does not equate to a number 1 on a ballot paper," counsel said. 

Mr Kiely's challenge is also brought on grounds including that he was prevented from looking approximately 200 spoiled votes in the electoral area prior to the recount. 

Opposing the action, Denis McDonald SC, for Kerry Co Council, said  on days where there were more than one ballot paper, many voters  put  their 1st and 2nd preferences on one paper, before putting their 3rd 4th or 5th preferences on the other ballot paper.

On days of multiple elections, Returning Officers are under the guidelines governing elections giving them discretion to deem valid votes where a clear sequence of preference is shown on ballots papers that are not marked with a number 1.

Counsel said to deem such ballots as being invalid would "disenfranchise a significant number of voters."

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