Kiely v Kerry County Council: decision listed for December 17th

ii Voting referendum DE 04

Election law doesn’t often come before the courts in Ireland. Next Thursday though (17th of December), in Kiely v Kerry County Council, the Court will deliver a decision on the power and discretion that can be exercised by election Returning Officers.

In July a five judge panel of Chief Justice Denham, O’Donnell J, McKechnie J, Clarke J and Charleton J heard Kiely’s application for review of a decision by the Returning Officers in the Listowel Electoral Area local election of May 2014.

Kiely is a former Fianna Fail senator who stood as an independent candidate for election to Kerry County Council in the Listowel district. He lost out on being elected by two votes. As there was a European election taking place on the same day, some voters voted, for example, 1 and 2 on their European election ballot paper and continued their preferences 3, 4 and 5, etc on their local election ballot paper. Where that occurred, the Returning Officers allowed those number 3s to be counted as 1s, and 4s as 2s, etc; guidelines issued to Returning Officers instruct them to do so on days of multiple elections. Plus, the Returning Officers would not allow Kiely to examine the approximately 200 spoiled votes.

Under a provision of the Local Elections (Petitions and Disqualifications) Act 1974, Kiely petitioned the Circuit Court to challenge the Returning Office’s decision. The Circuit Court judge dismissed that petition. Kiely then made use of a provision of the 1974 Act that allows an appeal of such Circuit Court decisions directly to the Supreme Court.

The issues are, firstly, whether the Returning Officers were legally obliged to count those number 3s as number 1s; and secondly, whether Kiely had a right to examine the votes that the Returning Officers had deemed to be spoiled.


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