Kerry court gives go ahead for local election recount

A court in Tralee has ordered a fresh recount of all ballots cast in the Listowel Municipal area local elections in May 2014.

The count is to take place “as soon as possible” and in the same venue as the original count, the John Mitchels GAA club in Tralee.

Nothing like this has happened before in the State, the court was told.

However, Judge Thomas E O'Donnell, at Tralee Circuit Court, said on Monday that the returning officer is to be appointed by Kerry County Council and he was anxious the process be carried out "in the normal fashion" without too much interference from the judiciary.

The new count comes on foot of an appeal against Kerry County Council taken by former Fianna Fáil senator Dan Kiely who stood out as an independent council candidate in 2014.

Mr Kiely, who lost by two votes, petitioned the Circuit Court for a recount but lost that case. However he appealed and the Supreme Court shortly before Christmas ruled that there was indeed a "mistake" in the conduct of the local election within the meaning of the relevant provision of the Local Elections (Petitions and Disqualifications) Act 1974 such as rendered it unlawful.

The mistake arose from the inclusion in the count of votes which contained a sequence of numbers not starting with the number ‘1’.

There was confusion as the local election ballot papers were distributed at the same time as European election papers. Some of the local papers had no first or second preference marked on them, but were allowed in the count despite the preferences on them beginning at number three.

Counsel for Mr Kiely, Elizabeth Murphy on Monday morning said the matter was now to be determined by the Circuit Court and Mr Kiely was anxious the count afresh take place as soon as possible.

Henry Downing, for Kerry County Council said the count afresh was "a full count from the beginning including re-examination of all ballots" and it had to start with "a remixing " of all the votes, including fresh scrutiny of votes.

Section 8 of the electoral acts set down what had to be done, and that the matter was now “under the direction of the court”, Mr Downing said. .

The judges had ruled that votes not beginning with the number 1 sequences were to be excluded, though votes with ticks might be included, the court was told.

Ms Murphy objected to the council appointing the returning officer.

Judge O’Donnell, who was told that this was the first time in history in which such a count afresh had been ordered, said he had no wish to have further legal history made. The judge said he would only wish to be involved at the start and at the end of the count and would wish the process itself was carried out in” the normal fashion”. In the event there was a difficulty about validity of certain votes, that would come before him for determination, if necessary.

He would like it organised as soon as possible and agreed with Mr Downing for the council that it would be prudent to publish advance notice of the count. The council is to give a week’s notice.

Judge O’Donnell reserved costs.

Almost 15,000 ballots will have to be recounted. There were 15 candidates for seven seats and a handful of votes separated three candidates in the final count.