Kiely v Kerry Co Co: Election Returning Officers can determine matters of judgement but not of law

ii Voting referendum DE 04In this case, the Court held that in an election, in order for an error by a returning officer to be determined to have materially affected the result it must be shown that, but for the error, it was likely that different candidates would have been elected. Where the alleged error involves purely a question of judgement, such as whether the mark indicates a first preference or is placed beside one or other candidate, the courts will not interfere with the decision of a returning officer unless it is manifestly ill-founded or clearly wrong. As a matter of law though, any number other than 1 (or one) beside a candidate’s name on a ballot paper does not clearly indicate a voter’s first preference, because no other number can clearly infer a first preference.

Background

Kiely is a former Fianna Fail senator. In 2014 he stood as an independent candidate for election to Kerry County Council in the Listowel district. He lost out on being elected by two votes. There was a European election taking place on the same day. There were 230 ballot papers over which the Returning Officers had to make a determination of validity; 173 ballots were determined to be invalid, and 57 were determined to be valid. A number of the questionable ballot papers that were determined to be valid were ones where the voters had not placed a number 1 but had started their sequence of preferences with a higher number, for example 3 and continued their preferences from there: 3, 4, 5, etc. 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, as some voters start their preferences on one ballot paper (EU ballot) and continue their preferences on their second ballot paper. In addition, the returning officers would not allow Kiely to examine the 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.

Law

The 1974 Act provides that the Circuit Court can overturn a decision of election Returning Officers, s 5 states:

(1A) A local election shall not be declared invalid because of a non-compliance with any provision of the Local Elections (Disclosure of Donations and Expenditure) Act, 1999, or mistake in the use of forms provided for in regulations made under that Act, where it appears to the court that a candidate, national agent, designated person (within the meaning of that Act) or person to whom section 6(7) of that Act applies, as the case may be, complied with the principles laid down in that Act taken as a whole and that such non-compliance or mistake did not materially affect the result of the election.

Article 80(2) of the Local Election Regulations 1995 states that a ballot will be invalid where:

(b) on which the figure 1 standing alone, or the word “one” or any other mark which, in the opinion of the returning officer, clearly indicates a first preference, is not placed at all or is not so placed as to indicate a first preference for some candidate; or

Supreme Court

Writing for the majority, Clarke J (here) stated that the Court had three issues to determine: firstly, whether a voting sequence not beginning with 1 could be said to clearly demonstrate a voter’s first preference; secondly, the extent to which the legislation conferred discretion on returning officers to determine such matters; and thirdly, if the returning officers had made an error, whether Kiely had demonstrated that the error had affected the outcome of the election.

On the first issue, Clarke J determined that the absence of a 1 on a ballot paper does not necessarily infer, in every case, that the voter continued their preference from another ballot paper. And he outlined other circumstances where that could occur; for example, where a voter starts with their last preference and works down towards 1 but does not complete their sequence for some reason. He held that, it may be that a significant majority of the errors of that nature can be explained by a voter continuing their sequence from another ballot. But, as a matter of law, it is required that the voter clearly intended to give their first preference to a candidate–it is not enough that they intended to do so as a matter of probability.

On the second issue, Clarke J held that Article 80(2) requires returning officers to determine whether the figure 1 or another mark clearly indicates a voter’s first preference for a particular candidate. Where that is a matter of judgement, such as whether the mark clearly indicates a first preference, or where the mark does not clearly indicate one candidate over another, Article 80(2) reguires returning officers to make a determination on that. And in such circumstances, where the decision is one of exercising judgment only, the courts should not interfere unless the decision is manifestly ill-founded  or clearly wrong. But a decision such as in this case, which is a matter of law, the courts can review a returning officer’s decision.

On the third issue, Clarke J, citing the authority of Jordan v Minister for Children (post), held that the test to be applied by the Court in determining whether to order an election recount is to ask whether it is reasonably possible that the inclusion of ballot papers with preferences not starting with 1 would have affected the outcome of the election.

Although not all of the 57 questionable votes allowed by the returning officers would likely have been ballot papers with preferences not beginning with 1, Kiely only lost out on election by only two votes; therefore it was likely that the inclusion of such ballot papers affected the outcome of the election. Given those circumstances, Clarke J held that the Court should order a full recount of the ballot papers.

Denham CJ, McKechnie J and O’Donnell J (here) concurred. Charleton J concurred in part (here), but disagreeid that Kiely had established that the error affected the outcome of the election.

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