THE SUPREME COURT [2014/366] Denham C.J.
O’Donnell J.
McKechnie J.
Clarke J.
Charleton J.
IN THE MATTER OF THE LOCAL ELECTIONS (PETITIONS AND DISQUALIFICATIONS ACT, 1974), AND
IN THE MATTER OF THE LOCAL ELECTIONS FOR LISTOWEL HELD ON 23rd MAY, 2014
BETWEENDAN KIELY PETITIONER/APPELLANT AND
KERRY COUNTY COUNCIL RESPONDENT AND
JOHN BRASSIL, JIMMY MALONEY, MIKE KENNELLY, MICHAEL O’GORMAN AND OTHERS FIRST, SECOND, THIRD & FOURTH NAMED NOTICE PARTIES & ORS AND
THE MINISTER FOR THE ENVIRONMENT, COMMUNITY AND LOCAL GOVERNMENT STATUTORY NOTICE PARTY
Judgment of O’Donnell J. delivered on the 17th day of December, 2015
1 I agree with my colleagues McKechnie, Clarke and Charleton JJ. on the principal ground of appeal, namely, that in this case a number other than 1 or “one” in a numerical sequence on a ballot paper is not a “mark clearly indicating a first preference” within the meaning of article 80(2)(b) of the Local Election Regulations 1995 (S.I. No. 297 of 1995) (“the Regulations”). I wish to add some brief observations to explain why I consider the petitioner here is entitled to relief notwithstanding the significant weight that I consider should be attached to the certainty of outcome in elections, and which was identified, admittedly in the context of constitutional referenda, in the judgments of the members of this Court in Jordan v. Minister for Children and Youth Affairs [2015] IESC 33. I also wish to explain why I respectfully differ from Charleton J. and consider that it has been established that the issue identified here is “likely to have affected the result of the election” within the meaning of s.5 of the Local Elections (Petitions and Disqualifications) Act 1974 such as to entitle the appellant to relief under s.8(1)(a) of the same Act, namely, that the votes cast in the election shall be counted afresh.
2 This is an appeal by case stated pursuant to s.7(3) of the 1974 Act, which provides that where a petition challenging the outcome of a local election has been tried in the relevant Circuit Court, a party to the petition may appeal on a question of law to the Supreme Court. In simple terms, the question is whether an individual ballot paper conforms to the requirement of the Regulations. Article 80(2) of the Regulations, which is contained in Part XIII of those Regulations, headed “Rules for the Counting of the Votes”, is in fact expressed in negative terms. It states:
“Any ballot paper -
(a) which does not bear the official mark; or
(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
(c) on which the figure 1 standing alone indicating a first preference, or the word ‘one’ or any other mark which, in the opinion of the returning officer, clearly indicates a first preference, is set opposite the name of more than one candidate; or
(d) on which anything is written or marked which, in the opinion of the returning officer, is calculated to identify the elector;
shall be invalid and not counted, but the ballot paper shall not be invalid by reason only of carrying the words ‘one’, ‘two’, ‘three’ (and so on) or any mark which, in the opinion of the returning officer, clearly indicates a preference or preferences.”
The question, therefore, is whether when a ballot paper such as those referred to in this case, contains a sequence of numbers such 3, 4, 5, (or any other numerical sequence commencing with a number other than 1) beside candidates’ names, the highest number in that sequence, (3, in the example taken) is a “mark which, in the opinion of the returning officer, clearly indicates a first preference”. I accept that this may be a question of fact or of mixed fact and law. However, here, the question facing the Circuit Court judge was one of mixed fact and law. The relevant facts were that the ballot papers concerned were marked in an election which took place on the same day as another election. The issue of law is not simply whether, for example, the number 3 in a sequence such as 3, 4, 5, can represent a first preference, but rather and more precisely whether in circumstances where two elections are held on the same day, and polling is carried out in the same location, the number 3 in a sequence such as 3, 4, 5, is a mark clearly indicating a first preference. If so, it follows that the numbers 4 and 5 in that sequence would in turn constitute second and third preferences within the meaning of the regulations. As so expressed, this is a pure issue of law, (indeed, if it were not, it could not be appealed to this Court) and cannot therefore be addressed by relying on the discretion of the returning officer. I agree that a substantial margin of appreciation must be allowed for returning officers when considering how to adjudicate on individual ballot papers, but a returning officer has no discretion in relation to the true interpretation of the law. That is a matter for a court.
3 Since the time of the great Reform Act, it has been the case that disputes about elections are brought to an electoral court. While, in principle, it might have been possible to provide that a returning officer could allocate votes according to his or her best estimate of the likely intentions of the voter, the legislation does not do so. Instead, it requires the exclusion of any ballot paper which does not carry the figure “1”, the word “one”, or a mark clearly indicating a first preference. The fact that the Regulations are framed negatively in this way is significant. A ballot is invalid unless it satisfies one of only three criteria: in this case, the only possible one is that it contains a mark constituting a clear indication of first preference.
4 For the reasons set out by my colleagues, with which I agree, the sequence 3, 4, 5, or any similar sequence, does not satisfy the statutory requirement of clearly indicating a first preference. In this regard, it is important, firstly, that the voter has failed to comply with the instruction to place a 1 (whether in numeral or word) on the ballot paper. Secondly, it is significant that what is alleged to be a mark, in this case indicating a first preference, is itself a numeral other than 1. The number 3 only makes sense in the context of other numerals. To that extent, the number 3 implies the existence of a number 1 and also that they are different, and that they are mutually exclusive. In the same way, “third” implies the existence of “first” and that they are, by definition, different things. Normally, to say that something is third means that is not, and cannot be, first.
5 This, however, is only a starting point. It might be thought of as the default position. There are a number of circumstances where the context might lead to a different conclusion. In simple terms, if a person explains that every time they say three they mean one, then the default position might be overridden. Similarly, if it is known that a person has an irrational fear of the numbers 1and 2, or has a computer where the striking the key “1” always produces the number “3” then once again the default position might be overcome. The question of interpretation of any communication depends firstly on the words used, but also on the context in which they were used, and finally on the degree of certainty required.
6 Here, however, it is a requirement of the process that the decision maker (and therefore interpreter) be unaware of the identity of the person completing the ballot paper, and furthermore know nothing about them. The method of communication is deliberately reduced to one of the most simple and normally unambiguous forms known: in a first past the post election, an X in the appropriate box will suffice: in a proportional representation election, the use of numbers indicating preference. Furthermore, the returning officer (or the court) must consider that the mark clearly indicates a first preference.
7 It was accepted that a numeric sequence like 3, 4, 5, or 4, 5, 6, might occur on a ballot paper in a single election held on a given day in circumstances where the number 3 or 4, as the case may be, was the lowest number (and therefore the highest preference) on the ballot paper completed. In such a circumstance, a returning officer has only the numbers and the ballot paper for context. It was accepted by all parties that it was at least possible that such an event could occur, and that there were possible explanations for it which were not consistent with the candidate, against whom the number 3 had been marked, being the voter’s first preference. It is not necessary to assign any particular likelihood to the different possible explanations: it is enough that it is possible that the number 3 might suggest a first preference, but might also suggest, as indeed the number normally implies, a third preference. The ‘Memorandum for Guidance of Local Authority Returning Officers at the Local Elections, Friday the 23rd of May, 2014’, issued by the Department of Environment, Community and Local Government, made the practical suggestion that in such circumstances, the returning officer should discuss the matter with agents. This might resolve the matter one way or another on a practical basis, but it is, at a minimum, indicative that the matter is open to doubt. I also doubt that it is in fact a matter for individual agreement: if it is the case that such a sequence might be taken as indicating a first preference, but might not, then it is difficult to say that it indicates such a preference clearly. Counsel other than counsel for the Minster seemed to take the position that in such circumstances, while the number 3 in a sequence 3, 4, 5, etc. might suggest a first preference, and even indicate such a preference, it could not be said to “clearly indicate” a first preference, and such a vote would be invalid. If this was the position they inclined to, I think they were correct to do so.
8 Accordingly, in my view, the case narrows to the point where it must be argued that the fact of another election being held on the same day, which would give a plausible reason for the existence of ballots in the local election where the highest preference on the ballot paper was a number such as 3, is sufficient to satisfy the statutory test and clearly indicate a first preference. In my view, this is not sufficient to satisfy the statutory requirement. Once it is accepted that it is possible to have the sequence 3, 4, 5, on a ballot paper without the number 3 indicating the voter’s first preference, then it does not seem to me to be sufficient that it can be said that it is more likely than not that the candidate with the 3 marked beside them was, in fact, the voter’s first preference. Nor is it sufficient that it can be said that the vast majority marked in such a way are ballots in which the candidate with 3 marked beside them is in fact the voters’ first preference. Each ballot paper must be taken on its own. If some of them could have been marked in this way in circumstances where the voter intended by the number 3 to indicate that that candidate was his or her third preference, then to determine in all cases that the number clearly indicated a first preference would be simply wrong. As McKechnie J. points out, the terms of the Memorandum for Guidance, which advises that such votes should be admitted, does so on the basis that the sequence “suggests” that voters followed on from preferences recorded on ballot papers with another election held on the same day. There is, however, a significant difference between a suggestion and a clear indication.
9 It is, I think, important that this is what might be described as a mechanical case: the question for the Court is the correct way to determine the outcome of the poll held on Friday the 23rd of May, 2014. There is no question, therefore, of the difficulties discussed in Jordan which may arise if the remedy sought is the holding of a fresh poll. Subject to the qualification that the proportionate representation system has an inbuilt, and perhaps unavoidable, element of randomness at the point of distribution of surplus, the issue here is merely the proper counting of the votes cast, and can be readily ascertained by carrying out that exercise now. Where real doubt exists as to the outcome which can be dispelled definitively by the recounting of the votes (which are kept after the election to facilitate that very exercise) it seems to me that the values of certainty and confidence in the outcome tip in favour of dispelling doubt.
10 In the judgment he delivers, Charleton J. considers that the evidence does not go so far as establishing, however, that the mistake in relation to these votes is one which is likely to have affected the result of the election. As I understand it, he considers that the evidence goes so far as to show that there may be more invalid votes included than the margin in this case, but that the evidence does not establish that those votes affected the result in the sense that it is, in theory, at least possible that all of the invalid votes cast should be treated as first preferences for the petitioner or some other candidate, which, if removed, would only have the result of increasing the margin by which the petitioner lost. He considers that the petitioner ought to have sought inspection of the ballot papers under article 93 of the Regulations as part of the preparation for the petition, and would then have been in a position to go further on the evidence. In future petitions, should an issue such as this arise, it may indeed be prudent to seek to inspect, but I am not convinced that failure to do so is a bar to the petition in this case. First, in a simple case, the identification and removal of invalid votes may make it clear what the correct outcome was. For such a case, the impact on the election will not be likely, it will be certain, one way or the other. I am not convinced that a petitioner has to demonstrate certainty in order to succeed. In other circumstances, the consequences of the removal of the invalid votes may indeed be more complex. Proportional representation is a notoriously sensitive system and the outcome of an election may depend not just on the numbers, the votes, and the preferences, but also on the sequence in which they are distributed. Even if on their face the removal of invalid votes might appear broadly neutral, their removal may have an impact on the distribution of votes, the elimination of candidates, and therefore the election of others. In such a case, it is not possible to be certain as to the outcome without rerunning the entire count. I am not satisfied that it is necessary to do so in order to seek relief on the petition, or indeed that inspection under article 93 would necessarily permit such an exercise. Inspection, therefore, might have made it more (or less) likely that the inclusion of these votes had an impact on the result, but that does not mean that the present, limited ,evidence does not indicate that effect on the outcome was likely. This was an extremely close election, and in the circumstances of this case, I am satisfied that the evidence, limited as it was, is sufficient for the petitioner to succeed.
11 I am influenced in this regard by analogy with the test applied in Jordan. Once this Court has found that there was a mistake with the sequence which did not commence with the number 1, and given the fact that the election was so close, then the point has been reached where it can be said that a reasonable person could be in doubt about, and no longer trust, the outcome of the election. That doubt can be readily resolved by having the ballots already cast counted afresh. If the Circuit Court judge had considered that the view of the law that the Court has taken was even possible, then I have little doubt that he would have ordered the counting of the votes in the same way as occurred in in the Matter of Election to European Parliament for Constituency of Leinster held on June 15, 1989, Petition of Micheal Bell (Unreported, High Court, Hamilton P., 24th November, 1989), if only to eliminate the possibility that the arguably invalid votes had affected the outcome. That would have been a sensible approach to the case and I see no reason why it should not be taken now. The position has been reached where all participants in the election, and indeed the relevant electorate, are entitled to know, rather than speculate about, the ballots cast.
12 I agree with my colleagues that the consequence of an order that the votes be counted afresh means that the process should be restarted under the supervision of the Court from the point of the opening of the ballot boxes. Because there is an inherent element of randomness in the functioning of the proportional representation system, this may mean that other variables are introduced which may have an impact on the outcome. There may be nothing inherently wrong in this: it is a feature of the system for elections which is used in Ireland. However, I agree with the observations of Clarke J. that it may be possible, if considered desirable, to seek to provide a remedy which would ensure that, on an order that the votes be counted afresh, the only variable involved would be the removal of the factor which the Court had found to constitute a mistake. That, however, is a matter of policy and practicality, and may be the subject of dispute in future litigation. On the view I take of the statute, it does not arise here.
Judgment of Mr. Justice Clarke delivered the 17th December, 2015.
1. Introduction
1.1 For over two decades now, elections to the European Parliament and Local Elections in Ireland have frequently taken place on the same day. 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”. As far back as an election petition brought in respect of the European Parliamentary election in 1989 (in the Matter of Election to European Parliament for Constituency of Leinster held on June 15, 1989, Petition of Micheal Bell (Unreported, High Court, Hamilton P., 24th November, 1989)) (“Bell”) there has been a debate about whether ballot papers which have a sequence of numbers not starting with “1” are, or can be regarded as, valid and thus properly included in the count. For reasons which I will record later, the issue was not decided in Bell. It will be necessary to address the issue in the context of this appeal.
1.2 The election last year to Kerry County Council involving the Listowel District proved to be extremely close. On the final count, there was little to choose between a number of candidates. In particular, the petitioner (“Mr. Kiely”) lost out on the final seat by just two votes. In circumstances which it will be necessary to set out in a little more detail, those votes which contained a sequence of numbers not starting with “1” were included by the returning officer in the count. Mr. Kiely suggests that the returning officer was wrong so to do. He also suggests that it is realistic to consider, given the closeness of the election, that excluding those votes (as he suggests the returning officer was obliged to do) might have made a difference to the result.
1.3 Against that background, Mr. Kiely brought a petition to the Circuit Court in accordance with s.2(1) of the Local Elections (Petitions and Disqualifications) Act 1974 (“the 1974 Act”). The respondent county council was responsible for the conduct of the election and sought to stand over the decision taken by the returning officer to include the questioned votes. The various other candidates were named as notice parties. Some, but not all of those other candidates participated both before the Circuit Court and in the appeal before this Court.
1.4 In addition to the underlying question as to whether the relevant votes should have been included in the count, a number of other issues concerning the scope of an election petition under s.5 of the 1974 Act and questions concerning what ought properly to arise on a recount when requested were raised in the course of the hearing of this appeal.
1.5 In order to fully understand the issues, it is necessary to start by identifying the procedural history insofar as it is now relevant to the issues which have to be decided and also to set out the relevant legislation.
2. The Procedural History
2.1 There has already been a hearing before this Court in this matter. The issues which arose at that hearing and the judgment of this Court in that regard are set out in Kiely v. Kerry County Council [2015] IESC 65.
2.2 For the reasons set out in that judgment, the ultimate determination of the Court was that what is properly described as an appeal came to be before this Court. It is that appeal which was the subject of an oral hearing in October giving rise to this judgment.
2.3 On the day of the October hearing, only two of the notice parties appeared before this Court to make submissions through counsel, namely the third named notice party (“Mr. Kennelly”) and the fourth named notice party (“Mr. O’Gorman”). Counsel for the Minister for the Environment also appeared for the purposes of assisting the Court and offering submissions on the points of principle raised although it was made clear that the Minister took no part in any specific issues which arose between the parties.
2.4 I next turn to the legislation
3. The Legislation
3.1 Section 5 of the 1974 Act provides for the grounds on which an election petition can be brought and is in the following terms:-
(1) Subject to section 82 (6) of the Act of 1963, a local election may be questioned on the grounds of want of qualification, obstruction of or interference with or other hindrance to the conduct of the election, or mistake or other irregularity which, if established, are likely to have affected the result of the election and without prejudice to the generality of the foregoing, any of the following grounds may be specified in a petition:
(a) a local election was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law;
(b) a local election was affected by electoral offences,
(c) a person at a local election was, on the date of his nomination, not qualified for membership of the relevant local authority.
(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.
(2) Notwithstanding any other provision of this Act, a petition shall not be dismissed on account of an informality in its contents which does not materially affect its substance.
3.2 As part of that process the Court has the powers set out in s.8 of the 1974 Act as follows:-
“8.—(1) The court may, for the purposes of the trial of a petition, if it thinks fit, order—
(a) that all the votes cast at the election shall be counted afresh,
(b) that all the votes so cast in a particular local electoral area shall be so counted, or
(c) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted,
and where the court so orders, the provisions of the following subsections shall have effect.
(2) Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3) and (4) of this section and to such modifications (if any) as the court considers necessary, the provisions of any regulations made by the Minister under section 82 of the Act of 1963 relating to the counting of votes at a local election shall apply to such counting.
(3) Where votes are counted afresh pursuant to an order under this section the court shall cause the following to be ignored:
(a) preferences recorded on ballot papers which are invalid by virtue of regulations made by the Minister pursuant to section 82 of the Act of 1963.
(b) preferences recorded on forged or counterfeited ballot papers, and
(c) preferences recorded for any person who, with respect to the relevant election, is found by the court not to have been qualified for membership of the local authority.
(4) The court shall have power to reverse any decision of a returning officer at the original count.
…”
3.3 Provision for a recount is set out in article 87 of the Local Election Regulations 1995 (S.I. no. 297/1995) (“the Regulations”), which were made under the powers conferred on the Minister for the Environment by s.22 of the Local Government Act 1994, and which provides:-
“87. (1) Any candidate or any agent of a candidate may, at the conclusion of any count, request the returning officer to re-examine and recount all or any of the papers dealt with during that count, and the returning officer shall re-examine and recount such papers accordingly without making any alterations in the arrangement of the papers in the various parcels, save where such alterations may be necessary in consequence of any error discovered in the recount. Nothing in this sub-article shall make it obligatory on the returning officer to re-examine or recount the same parcel of papers more than once.
(2) The returning officer may at his or her discretion recount papers either once or more often in any case in which the officer is not satisfied as to the accuracy of any count. The power under this sub-article of a returning officer to recount papers shall extend to papers dealt with at an earlier count than the immediately preceding one.
(3) (a) One request (and not more) may be made by each candidate for a complete re-examination and recount of all parcels of ballot papers and the returning officer shall re-examine and recount the parcels of ballot papers accordingly.
(b) In the re-examination and recount, the number or order of ballot papers in any parcel shall not be disturbed.
(c) Nothing in the provisions of this sub-article shall make it obligatory on the returning officer to re-examine or recount the same parcel of papers more than once, but if an error is discovered which is, in the opinion of the returning officer, a significant error likely to affect the result of the election, the returning officer shall count all the papers afresh from the point at which the error occurred.
(d) Nothing in this sub-article shall make it obligatory on the returning officer to comply with a request by a candidate which, in the opinion of the returning officer, is frivolous or vexatious.
(e) A request under this sub-article may be made only at the conclusion of a count.
(4) Where an error is discovered, the returning officer shall, where necessary, amend any results previously announced by the officer.
(5)Where a request made under sub-article (3) is withdrawn by the candidate as respects whom it is made, it shall be open to the returning officer not to proceed, or proceed further with the re-examination and recount.”
3.4 In addition, provision is made for the scrutinising of votes to determine their validity by the Returning Officer under article 78 of the Regulations as follows:
“The returning officer shall cause the ballot papers to be scrutinised for the purpose of discovering any papers liable to be rejected as invalid and shall, in accordance with Part XIII, ascertain and record the number of votes given to each candidate.
3.5 A question, therefore, potentially arises as to what exactly is to happen, in the event of a recount being called, about a reassessment of the rulings made by the returning officer as to the invalidity or otherwise of ballot papers.
3.6 In accordance with the legislation, ballot boxes are emptied and all ballot papers are checked for the purposes of ascertaining whether a valid vote has been cast. Where a question mark arises as to the validity of any ballot, the relevant paper is normally placed to one side so that a decision can be taken by the returning officer as to whether a valid vote has been cast. It is normal practice to permit the candidates or their representatives to be present so that they can express views on whether a particular ballot paper ought or ought not properly to be included. In any event, those ballots which are deemed admissible are stamped to that effect and are returned for counting in the ordinary way. The other ballots are excluded from any further counting, although the returning officer does record the number of excluded ballots.
3.7 The issue which arose was as to whether, in the event that a recount is called, it is open to the parties to seek to revisit decisions previously made on the admissibility of ballots. That is an issue to which it may be necessary to return.
3.8 So far as the main issue is concerned, the relevant provisions of the legislation are as follows. Article 80(2) of the Regulations sets out what constitutes a valid or invalid vote in the following terms:-
“(2) Any ballot paper—
(a) which does not bear the official mark; or
(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
(c) on which the figure 1 standing alone indicating a first preference, or the word "one" or any other mark which, in the opinion of the returning officer, clearly indicates a first preference, is set opposite the name of more than one candidate; or
(d) on which anything is written or marked which, in the opinion of the returning officer, is calculated to identify the elector;
shall be invalid and not counted, but the ballot paper shall not be invalid by reason only of carrying the words ‘one’, ‘two’, ‘three’ (and so on) or any other mark which, in the opinion of the returning officer, clearly indicates a preference or preferences.”
3.9 In addition, it is necessary to note the statutory definition of a “first preference” which is set out in article 80(1) of the Regulations as follows:-
(a) "first preference" means any mark which, in the opinion of the returning officer, clearly indicates a first preference;
3.10 In like manner, article 80(1) also sets out the definitions for other preferences as follows:-
“‘second preference’ means any mark which, in the opinion of the returning officer, clearly indicates a second preference standing in succession to a first preference;
‘third preference’ means any mark which, in the opinion of the returning officer, clearly indicates a third preference standing in succession to a second preference and so on;
(b) ‘next available preference’ means a preference which, in the opinion of the returning officer, is a second or subsequent preference recorded in consecutive order for a continuing candidate, the preferences next in order on the ballot paper for candidates already deemed to be elected or excluded being disregarded;”
3.11 The principal substantive issue comes down to a question of whether it was open to the returning officer to form a lawful opinion that ballots containing a sequence of numbers not starting with “1” could be said to have “clearly indicate[d] a first preference ”.
3.12 It is also of some relevance to note that guidance was issued to returning officers as to a range of questions which might arise in the context of conducting the count. That guidance is contained in a document entitled “Memorandum for the Guidance of Local Authority Returning Officers at the Local Elections Friday, 23rd May, 2014” (“the Guidance”).
3.13 In the context of the votes which are contested in this case, the Guidance says the following at pp.52-53:-
“…A sequence which starts with the number other than 1 e.g. 3, 4, 5, 6 - (discuss with agents - see below)
“In this connection, and for the purpose of consistency, returning officers should accept as valid individual ballot papers which include a sequence of preferences (e.g. 4, 5, 6 or 6, 7) which suggest that voters followed on from preferences recorded on the ballot papers at another election held on the same day.”
3.14 While there was broad agreement on all sides that the Guidance did not have any legal effect, nonetheless it does need to be recorded that the decision taken by the returning officer was in accordance with the Guidance, which seems to suggest that votes with a sequence of numbers not starting with “1” should be included.
3.15 Finally, so far as the legislation is concerned, it is important to note that, in order for an election petition to be successful, it is necessary that any error identified must have been “likely to have affected the result of the election” (see s.5(1) of the 1974 Act). This Court, in its recent judgments in Jordan v. Minister for Children and Youth Affairs [2015] IESC 33, made clear that, when used in electoral legislation (Jordan was, of course, concerned with a referendum), the term “affected” in that context means an effect on the actual outcome rather than simply an effect on the votes cast in a particular direction. In the context of the referendum under consideration in Jordan it would have been necessary, therefore, that the appropriate threshold of materiality be established by reference to the possibility that the ultimate outcome of the referendum might have been altered. It follows, therefore, that, in the context of an election, in order that an error be regarded as having affected the result, any such error must be demonstrated to meet a threshold of likelihood of having actually altered the outcome of the election in the sense that there would be a difference in the candidates elected. Finally, it must be noted that the relevant provision of the Regulations concerning marks expressing a clear preference makes reference to the “opinion of the returning officer”. In that context, there may also be a question as to the extent to which a court should afford some margin of appreciation to a returning officer.
3.16 Against that general background it is next necessary to turn to the issues.
4. Issues
4.1 Counsel for Mr. Kennelly did seek to raise, on the hearing of the appeal, a point concerning what was said to be an unfair procedure or practise adopted by the returning officer. It was said that he or his representatives were not given a reasonable opportunity to make representations at a particular point in the process. I am, however, satisfied that this Court, on this appeal, is confined to considering those issues which were properly before the Circuit Judge and which are specifically referred to in Mr. Kiely’s notice of appeal. It does not seem to me that the issue thus sought to be raised on behalf of Mr. Kennelly is properly before the Court and I do not consider it appropriate to comment further on it.
4.2 Next, it is necessary to touch on a question which was debated by a number of parties at the hearing of this appeal. As noted earlier, a question was raised as to whether it was appropriate, in the context of a recount being called, to revisit the question of the proper inclusion or exclusion of votes where the returning officer had, prior to starting to count the numbers of ballot papers containing a first preference for each candidate, determined that certain ballots were either valid, and thus included in such counting, or invalid, and thus excluded as being spoiled. The issue concerned whether the concept of a recount, properly construed in accordance with the legislation, included a reassessment of the original decision of the returning officer in that regard. However, it will not be necessary to consider that point if Mr. Kiely is correct in his principal contention, which is that the returning officer was wrong to include or deem valid votes containing a sequence of numbers not beginning with “1”. I, therefore, propose for the moment to leave over the question of the scope of a recount.
4.3 It seems to me to follow, therefore, that there are three principal issues which need to be addressed. The first two are connected. The first concerns the status of votes containing a sequence of numbers not beginning with “1”. The second concerns the extent to which the legislation might be said to confer an adjudicative function on the returning officer to determine whether such votes should be considered valid such that the Court should give some deference to the opinion of the returning officer in that regard. I propose to consider both of those questions together.
4.4 Third, and in the event that Mr. Kiely is successful in persuading the Court that the questioned votes were erroneously included, the issue arises as to whether Mr. Kiely has also established that the wrongful inclusion of the votes in question was likely to have affected the result.
5. Discussion
5.1 The context within which those issues arise is the scope of the grounds on which an election petition can successfully be brought. The first requirement for present purposes in that regard, which is to be found in s.5(1) of the 1974 Act, is that there be a “mistake or other irregularity”.
5.2 The question of a mistake or irregularity must be seen in the context of the requirements of article 80(2) of the Regulations as to what constitutes a valid vote. Those provisions require, in order that a vote be valid, that the figure “1”, or the word “one”, “or any other mark which, in the opinion of the returning officer, clearly indicates a first preference” must be present. Clearly, the votes in question in this case do not have the number “1” or the word “one”, so they can only be considered valid if they meet the third possibility, being that they contain a mark which, in the opinion of the returning officer, clearly indicates a first preference. Similar considerations apply to treating the second number in such a sequence (for example, a “4” in circumstances where the ballot paper contains the sequence “3”, “4” and “5”) as a second preference and so on.
5.3 In substance, therefore, the issue comes down to the question of whether the inclusion of such votes can be said to amount to a mistake or irregularity. It is in that context that the use of the term “in the opinion of the returning officer” in the legislation also comes into play. If the decision to include a vote comes within whatever margin of appreciation is afforded to the returning officer, then, even if the Court might itself have taken a different view as to whether it would have admitted the vote in question, the inclusion of the vote could not be regarded as resulting from “a mistake or irregularity” and thus could provide no basis for a successful election petition. The question comes down to one of whether it was, therefore, permissible, as a matter of law, for the returning officer to form the opinion that sequences of numbers not beginning with “1” can “clearly indicate” first and other preferences.
5.4 I should say first that there may well be cases where the question of whether a particular mark represents a first or other preference does come down to a pure question of judgement. One example was discussed in the course of the hearing. It is, of course, necessary, even where the number “1” or the word “one” is used, that it be placed on the ballot paper in a way which clearly indicates the candidate on whom the voter intended to confer that first preference. It is possible to envisage cases where the number is not neatly placed within the box provided on the ballot paper. However, in some such cases it may be very clear that the number was intended to be placed opposite a particular candidate, thus conferring a first preference vote on the candidate in question. The more the number might be separated from a position where it is directly beside a particular candidate, and the more it may lie towards overlapping with the position in which one might expect a voter to place the number were they voting for a candidate whose name appeared either immediately above or immediately below the candidate in question on the ballot paper, the more it may become necessary to form a judgement as to whether the candidate in whose favour the voter may have intended to give a first preference has been clearly identified. At a certain point, it may cease to be the case that it can be said that the first preference is clear, for the location of the number or word may be such as to create a real doubt as to which of two candidates was the intended beneficiary of the vote concerned. But in such a case, there is no hard and fast rule. It is a matter of impression. It involves the exercise by the returning officer of a judgement. In my view, a court should not second guess the judgement of a returning officer in that regard unless it can be demonstrated that the returning officer’s view was manifestly ill-founded or clearly wrong. The reason for taking that view is that the issue which the returning officer would have to decide in such a case is a pure matter of adjudication and not a matter which involves any question of law at all. The only legal question is as to whether a preference has been clearly indicated. Whether that is so, having regard to the positioning of the number or word concerned, is purely a question of judgement.
5.5 However, a case such as this does raise a more significant issue which involves, at least potentially and in part, a legal question. Is a sequence of numbers which does not commence with “1” capable of “clearly” expressing a first preference? That is, at least in part, a question of the proper interpretation of the legislation and, thus, a question of law.
5.6 I should start by stating that it appears entirely reasonable for the returning officer to have formed the view (in conformity with the suggestion in the Guidance) that it was likely that many, perhaps most, of the voters who completed a ballot paper with a sequence of numbers not starting with “1” did, as a matter of fact, do so because they erroneously voted sequentially between the two ballot papers which they were completing on the occasion in question. It may well be that a voter who made that error could be said to have intended to give a first preference to the candidate to whom they attributed the lowest number on the second ballot paper in question. It is undoubtedly probable that quite a number of the ballot papers which were included in the count in this case (even though they did not contain the number “1”) were completed by the voters in question in that way. However, there could be other reasons why a voter might have omitted a number “1” on their ballot paper. Not all voters start with the number “1” and continue down the ballot paper writing successive numbers until they have reached the end of the candidates on whom they wish to confer a preference. Some voters might give lower preferences first and work backwards. Alternatively, a voter may have decided to confer their first two preferences on the candidates of a particular party but might have proceeded to give lower preferences first before coming back to deciding which of the candidates of their preferred party was to get a first preference and which a second. Many other examples can be given. Therefore, it does not follow that the absence of a “1” on the ballot paper necessarily implies that, in each and every case, the voter in question made the error of voting sequentially between the two ballot papers. There may be other explanations which might suggest that the relevant voter did not intend to give a first preference to the individual opposite whom the lowest number was written on the ballot paper but rather intended to return to give a first or other high preference to other candidates but, for some reason, did not do so.
5.7 I do not doubt that, taking one ballot paper with the next, the “sequential voting between ballot papers” explanation is much more likely and that, therefore, of a set of ballot papers containing the problem with which this Court is concerned in this case, it is probable that the majority, or even a significant majority, can be explained by that error rather than some other mistake. But it does not seem to me that that analysis represents the correct approach in law. It is not a question of determining whether, as a matter of probability, the majority of votes displaying a particular problem might have been completed as a result of an error which would lead to the inference that a number other than “1” was intended to confer a first preference. Rather, the question is whether each individual ballot paper can be said to “clearly” indicate a first preference for the candidate opposite whom the lowest number had been written. In my view, it can not be said that this is clearly the case. It must be recalled that, while the intention of the voter lies behind the exercise, the test is as to whether the ballot paper itself conveys a clear preference.
5.8 While it might well be said that it is probable that a significant majority of the ballot papers displaying a sequence not beginning with “1” might have resulted from an error in which the voter placed the lowest number opposite the candidate on whom they wished to confer a first preference, it cannot be said that this is clearly so in respect of any individual ballot paper, not least because there are other explanations. For those reasons, it does not seem to me that, as a matter of law, the presence of a number other than “1” opposite a candidate can be said to “clearly” confer a first preference on the candidate in question. It is not necessary, therefore, to consider whether a number can be a “mark” within the meaning of the Regulation. Even if it is possible that a number might be a “mark” for that purpose, it does not seem to me that a number other than “1” can be taken to have sufficiently clearly indicated that each individual voter intended that larger number to represent a first preference even though it may well be the case that a significant number of the voters did so intend.
5.9 As noted earlier, it is also necessary to consider the extent to which a court hearing an election petition should defer to the judgment of a returning officer on questions such as the one which lies at the heart of this appeal. As also already noted, there may well be questions of pure judgement in respect of which the Court should confer considerable deference on a returning officer. However, the question which arises on this appeal is as to whether a sequence of numbers not beginning with “1” is capable, as a matter of law, of “clearly” indicating a first preference. That question does not come down to one of pure judgement but rather involves, at least to a material extent, a question of law, or at least the proper application of law to particular circumstances. For the reasons which I have sought to analyse, I am not satisfied that a sequence of numbers starting with a number other than “1” can “clearly” indicate a first preference, for there is a range of explanations as to why a voter might have omitted a “1”, at least some of which are inconsistent with the view that the voter was intending to confer a first preference on the candidate opposite whose name the lowest number appeared.
5.10 In those circumstances, as a matter of law, I am not satisfied that, in respect of any individual ballot, it can be said that a number other than “1” can clearly demonstrate a first preference. Thus, the decision to include such ballots amounted to a mistake of law and does not involve the type of decision where the Court should accord significant deference to the judgment of the returning officer.
5.11 For the avoidance of doubt, I should emphasise that what I am concerned with here is a ballot paper which contains a number other than “1” rather than a non-numerical mark which might reasonably be interpreted as amounting to the equivalent of a number “1”. Thus, it may well be reasonable for a returning officer to interpret a ballot paper which contains an “X” followed by a “2”, “3” and “4” as representing a ballot paper with a clear first preference in favour of the candidate opposite whose name the “X” appears. Like considerations may well apply where other marks which might be taken to represent a first preference are found, followed by the numbers “2”, “3” and “4”. This judgment is not concerned with such votes. Rather, this judgement is concerned with ballot papers which contain only numbers but where the lowest number is not “1” or “one”.
5.12 Indeed, it is worth noting in passing that, if it did transpire that some of the voters whose votes are in question on this petition had made one of the other types of errors which I identified above, a significant and additional injustice would be visited on that voter as a result of the inclusion of the vote in question. Let us take the example of a voter who remained undecided as to which of the two candidates of a particular party she wished to benefit with a number “1” and who therefore filled in the rest of the ballot paper with numbers, beginning with “3”. Let us assume that the same voter was then distracted, perhaps by completing the other ballot paper, and forgot to come back to include a “1” and a “2” for the candidates of the party of her choice. The inclusion of such a ballot paper in the count would actually mean that the ballot of the voter in question would be treated as a number “1” for a candidate opposed to the preference of the voter in question. That voter could not complain about her vote being excluded because it was her error not to go back and fill in a “1” and a “2”. She might, however, have a legitimate complaint if her vote was actually counted against the candidate(s) on whom she hoped to confer a first (or second) preference.
5.13 In any event, it seems to me that Mr. Kiely has established that there was a mistake in the conduct of the count in this case. That mistake was the inclusion of votes which cannot be said to have contained the number “1”, the word “one” or an acceptable mark which clearly indicated a first preference. Given that finding it is, therefore, necessary to turn to the question of whether it can be said to have been demonstrated in a proper fashion that such an error affected the result.
6. Did the error affect the result?
6.1 The starting point has to be to identify the test by reference to which this question must be judged. As noted earlier, an analogous question, in the context of a referendum, was addressed by this Court in Jordan. The test identified by the Court is to be found in the judgment of O’Donnell J. where he said, at para. 85:-
“Accordingly, I would hold that ‘material effect on the outcome of a referendum’ involves establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person would be in doubt about, and no longer trust, the provisional outcome of the election or referendum.”
6.2 There are a number of questions which arise in relation to the proper application of that test in the circumstances of this case. The first is a question of evidence. As petitioner, the onus to prove his case undoubtedly rests on Mr. Kiely. It is for him to demonstrate that the conditions necessary for the Court to intervene are present. There are, however, questions as to whether Mr. Kiely has properly established sufficient facts to warrant the Court’s intervention. It might be said that there are two aspects of the facts which are not very clear on the evidence and which, it is argued against Mr. Kiely, could have been the subject of better evidence presented on his side. Those two aspects of the facts concern the precise number of votes which were included as a result of the mistake which I have already identified, and also the question as to which candidates might have been favoured by the inclusion of the votes in question. On the basis of what is said to be the inadequacy of the evidence presented by Mr. Kiely in that regard, it is argued that he has failed to discharge the onus of proof which rests on him.
6.3 In that context it must, of course, be noted that the trial judge did not consider there to have been any error, and therefore the question of the materiality of any error was not the subject of a particular focus of the judgment. The trial judge held that the outcome of the election would have been the same even if Mr. Kiely had succeeded on either the first or second grounds originally raised (i.e. on the ground that the returning officer should not have refused to include the re-examination of doubtful ballots in a recount, or on the ground that the returning officer should not have adjudicated on doubtful ballots without notifying Mr. Kiely or ensuring his presence). Those issues were not raised on this appeal. However, having considered that the returning officer was entitled to admit such votes as, in his opinion, clearly indicated a first preference, the Court did not expressly consider whether the outcome of the election might have been different had these votes not been included. This is so even though the trial judge recorded that “[i]t is the Petitioner’s case that the admission of ballot papers without a “1” or a “one”, probably, would materially have affected the result, there being so many of them” at p.16 of his judgment.
6.4 Be that as it may, the principal argument made against Mr. Kiely under this heading is that he could (and, it is said, should) have exercised the entitlement to apply to the trial judge to be allowed to inspect the ballot papers and, thus, have put himself in a position to present more detailed evidence as to the practical consequences for the result of the election of the inclusion of the contested votes. There is no doubt but that the trial judge would have had authority to allow the votes to be inspected. It is, however, illustrative to note what happened in Bell. In that case, Hamilton P., of his own motion, arranged for the questioned ballot papers to be looked at by an experienced returning officer for the purposes of ascertaining whether, even if the point made by Mr. Bell were correct, a different view on the validity of the ballots in question would have made any difference to the result. It is interesting to note that at the elections to the European Parliament which were the subject of the petition in Bell, differing views on the inclusion of ballot papers containing a sequence of numbers starting with a number other than “1” had been taken by different returning officers. Hamilton P. did not find it necessary to express a view as to what the correct approach was precisely because, having adopted the course of action to which I have just referred, it became clear that even if Mr. Bell were correct in his legal contention, it would not have altered the result. However, in Bell, that factual situation became clear as a result of the decision of the trial judge to conduct a counting exercise under his own direction and with the assistance of an experienced returning officer rather than as a result of the presentation of evidence by the petitioner.
6.5 The real question is as to whether there was something amounting to an obligation on Mr. Kiely to present detailed evidence as to precisely how many votes were involved and which candidates they favoured. Even in that context, it must be acknowledged that scrutiny of the relevant votes would not necessarily have given rise to absolute clarity. One of the consequences of the exclusion of the relevant contested votes would, of course, have been that the total valid poll would thus have been reduced with a consequent reduction, almost certainly, in the quota. There would, therefore, have been potential knock-on effects on how certain counts would have been conducted in that a reduced quota might mean a larger surplus for a particular candidate. Precisely how, through a series of counts, the effect of the exclusion of the votes in question would have fed into the ultimate result is not a matter which a simple perusal of the votes in question would necessarily have disclosed. The quirks of the proportional representation system, including the sequence in which candidates are eliminated, the method by which a surplus is distributed, including the fact that a different method is adopted in respect of the distribution of a surplus arising on a first count as opposed to a surplus arising on a second or subsequent count, and other matters of detail mean that the exclusion of even a relatively modest number of votes could, potentially, have consequences which would not necessarily be apparent from a simple consideration of the relevant ballot papers.
6.6 Be that as it may, it seems to me that the answer to this question lies in the test identified by this Court in the judgment of O’Donnell J. in Jordan.
6.7 The starting point has to be the evidence. It would appear that the trial judge was satisfied that, of the ballots which were specifically referred to the returning officer as being questionable, 57 were admitted to the count with 173 being excluded. It seems reasonable to infer that the ballots, the admission of which is questioned in these proceedings, must have formed part of the 57 ballot papers ultimately admitted. There does not appear to have been direct evidence as to just how many of the 57 ballot papers which were thus admitted had originally been queried on the basis of having a sequence of numbers not beginning with “1” or “one”. Doubtless, some the relevant 57 ballot papers were queried on other grounds but were nonetheless found to be valid. Thus, only a proportion of those 57 votes could be said to have involved ballots with a sequence of numbers not including “1”. However, as already noted, there were only two votes in it on the final count. It would not have taken much to change the result. There seems to me to be a realistic possibility that there might have been enough votes of the questioned type included so that, having regard to the quirks of the proportional representation system to which I have already referred, it would not be unrealistic to regard it as possible that the result could have been different had those votes not been included.
6.8 To use the terminology adopted by O’Donnell J. in Jordan it is “reasonably possible” that the inclusion or exclusion of the contested votes might have affected the result. Likewise, the point was reached where a reasonable person would be in doubt about, and no longer trust, the result as declared on being told that the returning officer had, by a mistake, included in the count votes which ought properly to have been excluded.
6.9 The fact that it might have been possible for Mr. Kiely to present better evidence in that regard does not take away from the fact that the evidence which was before the trial judge gives rise to an inference that there was a realistic possibility that the result might have been different had the votes in question been excluded. In my view, Mr. Kiely met the onus of proof which rested upon him. Any other party could, of course, have also sought the examination of the contested ballot papers. If such an examination had taken place during the hearing of the Petition and if, as in Bell, it had thereby become clear that the exclusion of the ballots in question would not have availed Mr. Kiely, then the fact that he had met the prima facie burden of proof would nonetheless not have availed him. But no other party chose to present such evidence either.
6.10 Indeed, it seems to me that the very fact that one of the orders which a court can make in the course of an election petition is to direct that the ballots be “counted afresh” means that it cannot be the case that there is an absolute onus in all cases on a petitioner to present evidence of what is contained in the ballot papers. If such an onus rested on a petitioner, then the Court would have that evidence at the hearing, and it is very difficult to see what point would be served by requiring the votes to be “counted afresh”. That is not to say that there may be cases where it would be impossible for the petitioner to discharge the onus of proof to the appropriate standard without presenting some evidence as to what was contained in the ballot papers. However, for the reasons which I have sought to analyse, I am not satisfied that this was such a case, for the evidence which Mr. Kiely presented to the trial judge was, in my judgment, sufficient to discharge the onus of proof that rested on him.
6.11 In my view, therefore, it follows that not only has Mr. Kiely demonstrated that there was an error in the conduct of the count, but also that that error meets the threshold of materiality identified by this Court in Jordan. Before going on to consider the consequences of those findings, I wish to make a number of brief observations.
7. Some Observations
7.1 First, I should say that, in the light of those findings, it is unnecessary to consider whether the failure to reassess the admissibility of contested ballot papers on a recount amounts to a mistake or irregularity. There was, in any event, a mistake which is sufficient to meet the statutory test under s.5(1)(a) of the 1974 Act.
7.2 Next, it is necessary to say something about what is sometimes referred to as the “sanctity of the bundles”. There is a certain degree of randomness in the conduct of a multi-seat proportional representation count under our system. The reason for that randomness stems from the way in which physical ballot papers are transferred when the surplus of a candidate who exceeds the quota is being distributed. In general terms, all relevant ballot papers (being all ballot papers in favour of a candidate who is elected on the first count or all of the ballot papers which were transferred to the candidate concerned on a subsequent count where the transfer in question had the effect of bringing the candidate over the quota) are examined and the surplus is distributed proportionately. Thus far, there is no element of randomness.
7.3 However, when it has been determined that a particular number of votes is to be transferred as a result of a surplus, the physical ballot papers (being the relevant proportion required to be transferred) are taken from the top of the bundle in question and physically transferred to the candidate who is entitled to the relevant votes as part of the relevant surplus transfer. If that candidate, in turn, is either eliminated or is elected as a result of the transfer of the surplus in question, then the ballot papers physically transferred to that candidate can have an effect on where the votes in question ultimately end up. It would be unlikely that there would be any very significant difference, but it equally cannot be ruled out that there might be a marginal difference resulting from the way in which the ballots which are the subject of a surplus are actually stacked up in their bundles. Thus, it follows that if all the votes in a count which was conducted with complete accuracy were mixed again and recounted again, also with complete accuracy, there might be a marginal difference in the result. If the count is very close then that marginal difference might be material. It is for that reason that the rules for the conduct of counts require that the ballot papers be kept in the same sequence at all times because, if that were not to be the case, the result could become truly random (see for example article 87(3)(b) of the Regulations cited earlier which requires that the same order of ballots be kept during a recount). With the bundles kept in the same sequence, whatever randomness there may be crystallises when the votes are put in a particular order at the beginning of the count.
7.4 Obviously, if there were to be a remixing of the ballot papers, then whatever randomness had crystallised by the original ordering of the ballot papers in question when the count began would be recreated by the very act of remixing the ballot papers. It will be necessary to consider that undoubted fact in the context of the final issue, to which I now turn, which concerns the order which the Court should make.
8. What Order should the Court make?
8.1 The starting point has to be the finding, which I have already indicated should be made, to the effect that the count in this case was affected by a mistake and that it has been established that it is reasonably possible that the result of the election was affected by that mistake. It is against that background that the Court must decide what the consequences of those findings should be.
8.2 Section 8 of the 1974 Act provides that the Court may, for the purposes of the trial of a petition, if it thinks fit, order, amongst other things, that “all the votes cast at the election shall be counted afresh”. (See s.8(1)(a)).
8.3 Section 8(4) provides that the Court “shall have power to reverse any decision of a returning officer at the original count”. Given my view that the original count was conducted in error in a manner which met the threshold of likelihood of affecting the result, it seems to me to necessarily follow that the Court should direct the counting afresh of the ballot papers and should, in that context, reverse the decision of the retuning officer concerning the admissibility in that count of the ballot papers which contained a sequence of numbers not starting with “1”.
8.4 However, an issue arises as to what is meant by the term “counting afresh” in the sense in which it is used in s.8 of the 1974 Act. First, it should be noted that this is not a case in which a question arises as to ordering or directing the counting afresh of all the votes in a particular electoral area or all the votes contained in a particular parcel in accordance with ss. 8(1)(b) or (c). The mistake identified is not confined to any particular electoral area or any particular parcel or parcels of ballots. Therefore, what is required is the counting afresh of “all the votes cast at the election”. Clearly, in so doing, the Court must direct that the returning officer exclude the ballot papers identified in this judgment. However, the further question arises as to just how far back in the process of conducting the count it is necessary to go in accordance with the requirement that “all the votes cast at the election shall be counted afresh”.
8.5 There are three possibilities. They are:-
(a) That one must go back to the very beginning so that, in counting afresh, the question of the admissibility or validity of those votes previously ruled on (with the exception of the votes whose admissibility are specifically dealt with in this judgment) can be reopened; or
(b) That one goes back to the point immediately after the validity or otherwise of votes has been determined but conducts all stages thereafter, including a complete remixing of the ballot papers; or
(c) That the counting afresh complies with the obligations contained in the Regulations concerning a recount and thus retains, in accordance with article 87(3)(b), “the number or order of ballot papers in any parcel”.
8.6 Given the “sanctity of the bundles” point which I have already addressed, there is an argument to the effect that the Court should direct that, during any counting afresh, the ballots should be retained in the same order as they were originally placed in bundles, subject only to removing those ballots which, for the reasons addressed in this judgment, were wrongfully included. The alternative course of action could lead to a situation where the ultimate result, after the counting afresh, might, because of the randomness element which I have identified, actually be different to the result which would have occurred had the count been properly conducted in the first place. Indeed, paradoxically, if one were to conduct a “counting afresh” in any other way, then there would be a possibility that Mr. Kiely might find himself in a situation where it would become apparent that he should have won the election had it been properly conducted with the ballots in the order into which they were placed during the original count, but might still lose the election after a “counting afresh” because a remixing of the ballots and a reintroduction of a different random element to the count might work against him.
8.7 Indeed, the circumstances of this case demonstrate a further difficulty. For the reasons set out earlier in this judgment, I am unable to agree with the view expressed by Charleton J. to the effect that Mr. Kiely has failed to discharge the onus of proof which undoubtedly rests on him in bringing a petition such as this. However, it is clear that it would at least have been possible for Mr. Kiely, or indeed any other party to the petition, to have sought an order from the trial judge to enable them to inspect the votes and to have presented whatever evidence might have been forthcoming from such an inspection at the hearing of the petition before the Circuit Court. In essence, the difference of view between myself and Charleton J. stems from whether the presentation of such evidence is required, as opposed to being merely permissible. However, the one thing that is clear, on either view, is that the evidence concerned could have been presented.
8.8 In that context, it is worth considering what course of action it might have been appropriate for the Circuit Court judge to adopt in the event that such evidence was presented, and was such that it indicated that, had the contested votes not been included in the count proper, Mr. Kiely would have succeeded and some other identified candidate would have lost. I appreciate that the evidence might or might not have been capable of dealing with that question in a clear fashion. If, for example, exclusion of the contested votes would have led to a different order of exclusion of candidates or the like, then it might not really be possible, short of conducting a very elaborate exercise, to attempt to work out what would have happened had the contested votes not been included. But equally, it might be possible that the relevant votes could be identified, their effect on the various counts calculated, and the effect of the exclusion of those votes on the position of the continuing candidates on the final count determined as a matter of real certainty. If that had happened and if it had transpired that Mr. Kiely would not suffer significantly by the exclusion of the contested votes but other candidates would, so that Mr. Kiely should have won, what then should the Circuit Court judge do? Should he simply correct the result and declare that Mr. Kiely should have been elected instead of whichever candidate was found to have only been elected by virtue of the inclusion of the contested votes, or should he order a full counting afresh if that is to mean going back and remixing the votes from the beginning?
8.9 Given the random element already identified, it is, as I have already noted, entirely possible that a counting afresh involving a remixing of the ballots might lead to a different result again. That analysis raises the possibility, which is undoubtedly unattractive, that the result of an election petition might depend on whether a judge, prior to or in the course of hearing the petition, gave liberty to one or other party to inspect the votes and present evidence at the hearing, on the one hand, or simply heard sufficient evidence to be satisfied that there was a realistic possibility that the count had been affected by error and ordered a “counting afresh”, on the other hand. But, unattractive as that proposition may appear, it is necessary to consider whether that anomaly is what the legislation requires.
8.10 The question turns on whether the phrase “all the votes cast at the election shall be counted afresh”, as used in s.8(1)(a) of the 1974 Act, requires a remixing of the votes in question. It is important to emphasise that the term “counting afresh” is used in s.8 of the 1974 Act, whereas the term used in the Regulations for what is to occur during the count itself when a candidate wishes to have votes re-examined is a “recount”. As noted earlier, the Regulations (which, by virtue of s.20(1) of the Electoral (Amendment) Act, 2009 have statutory effect “as if they were an Act of the Oireachtas”) themselves expressly provide that, in the event of a recount, the order of the ballots is to be kept the same. However, the actual legislation does not use the term “recount” but rather uses a different term, being “counting afresh”, for what is to occur, if directed, during an election petition. The legislation could have provided that the Court might direct a further recount and, in so doing, might require that certain decisions which the Court found to be mistaken would be corrected. But that is not what the legislation does. The term “counting afresh” is applied, expressly, to “all the votes”. That phrase seems to carry with it a necessity to go back to the beginning and thus consider first the validity of any questionable votes (other than those which are expressly the subject of the ruling in this judgment) and thereafter to remix the votes and count them entirely afresh. I recognise that this will reintroduce a random element which had crystallised, but it seems to me that the clear wording of s.8 requires just that.
8.11 There is no reason in principle why, should it be considered desirable and practical for the sort of reasons identified in this judgment (or, indeed, any other reasons) to change the law so that the Court might direct something analogous to the form of recount in which the order of ballots is retained, legislation could not provide for this. However, if such a change in the legislation is considered appropriate, same is a matter for the Oireachtas rather than for the courts. All the courts can do is interpret the legislation as it is. The legislation requires that all the votes be counted afresh and that, it seems to me, requires that the process go right back to the beginning.
9 Conclusions
9.1 I have, therefore, come to the conclusion that the inclusion by the returning officer of votes containing a sequence of numbers not including “1” amounted to a mistake for the purposes of s.5(1)(a) of the 1974 Act. I am also satisfied that Mr. Kiely produced sufficient evidence to discharge the burden of proof upon him to establish that it was reasonably possible that the mistake in question could have affected the result of the election as per the decision of this Court in Jordan.
9.2 It follows that the Court should, in my view, direct, under s.8(1)(a) of the 1974 Act, that the votes be counted afresh. In that context, I would propose that the Court should give a direction under s.8(4) that, in the context of counting the votes afresh, the decision of the returning officer in respect of votes containing a sequence of numbers not commencing with “1” or “one” should be reversed, and that those votes be excluded from being allocated to candidates as part of the counting afresh. In all other respects, I would direct that there be conducted a full count from the beginning including a re-examination of the validity of all ballots and a re-mixing of the ballot papers.
Judgment of Mr Justice Charleton delivered on Thursday the 17th day of December 2015
1. There are three issues on this election petition: firstly, is a choice valid that begins beyond the number ‘1’ or a mark which in its context indicates a clear first preference by being followed by ‘2’ and ‘3’ etc; secondly, are ballot papers rejected by a returning officer before the count begins as invalid, and thus not counted as part of the total valid poll, ever to be included in a recount; and, thirdly, has the burden of proof been met by the petitioner to enable a remedy on this appeal should error in the counting of votes have been demonstrated? That remedy is considered by the majority as a total recount.
2. Proof is the most important issue as it is central to the remedy sought, which is to upset the result of this election. It is the point of this dissent. Arguably, this petition would not have been necessary had the questioned ballot papers been discovered to, and then checked by, the petitioner. Each of these were both stamped and marked with a green pen by the returning officer so that the numbers ‘3’, ‘4’, ‘5’, etc were replaced by the numbers ‘1’, ‘2’, ‘3’ etc. Of itself, this illustrates the error which appears to have been collective to a number of returning officers in consequence of prior experience where local and European Parliament were run together: a not insubstantial number of voters thought that by starting on the European ballot and expressing a preference in numerical sequence starting with ‘one’ or ‘1’, that they had to continue through that numerical choice on the local election ballot resulting in their first preference becoming a ‘3’ or whatever, and then being continued sequentially. The difference between the last 3 candidates being less than 2 votes and 5 votes, on the proportional representation system, it is considered by the majority that the error of including ballot papers where preferences started numerically with other than a ‘1’ is, in the words of section 5 of the Local Elections (Petitions and Disqualifications) Act 1974, “likely to have affected the result of the election”.
3. While it is thus clear that the majority view on this election petition is based on that statutory imperative, this dissent is predicated on the basis that the section requires that relief is only available under the Act of 1974 where affect on the result of the election is “established”. Every plaintiff in every ordinary contract or tort case has to demonstrate the probability of the case they make: in the absence of establishing that their evidence is more likely to be correct than any countervailing evidence or possibility, the plaintiff fails. An electoral case should not be different. There is also the question of the means of proof. In an electoral case, with physical ballot papers which are preserved, the ones said by a petitioner to be wrongly counted and leading to an incorrect result can be physically taken out and scrutinised. That is the advantage the paper ballot system has over electronic voting machines: the evidence is there. In this case, by the simple expedient of identifying and taking out for judicial scrutiny the 57 ballots both stamped and corrected by the returning officer in a green biro pen and calculating the effect of any the error of their inclusion on the result, whether the result would have been different or not thereby could have been established. That was not done by the petitioner. That is what has happened on prior election petitions. There is thus no proof whether the now to be discarded 57 ballot papers favoured Dan Kiely. Elections are the expression of the people’s reposing of trust in representatives, chosen under conditions of high scrutiny and subject to legal form. There should be no questioning of an election result unless the test as set out in the Act of 1974 is met as a probability by any petitioner, whereby not just error in the running of an election is demonstrated but also a probable affect on the result of that election is also established. What the legislation requires is that the petitioner demonstrates as likely, not merely possible, that an impermissible method has produced a false outcome. That has not happened here.
4. In the light of the precise wording of the legislation, it is to be doubted if the citation of the prior cases on electoral petitions is of assistance. Of most relevance is Boyle v Allen [1979] ILRM 281 at 330, where Sheridan J pointed out that the onus of proof is on the petitioner “to show, by evidence, that (a) an incorrect adjudication took place and (b) that such an adjudication … was … likely to affected the outcome of the election.” The test is not whether the result could or would have been affected. Were that so, the petitioner must succeed simply because the numbers are so close. But, it is not the test. Mathematical proof of probable effect is possible by the extraction and counting of the 57 ballots clearly marked by the returning officer. In that context, nothing less than a demonstration of why these inclusions go either against the petitioner, or in his favour, and do not cancel each other out, is required by law. Proof on the balance of probabilities is required. The petitioner is required to establish a false result. As the relevant excluded ballots are capable of identification, mathematical calculation is not only feasible but is open. It is to be noted that the helpful submissions of the Minister for the Environment, Community and Local Government on this appeal include a reference to a 1999 petition, Larry Kavanagh v Laois County Council, noted in an article by Louis Brennan in Counts, Recount and Petition: Laois County Council Election 1999, published by the Institute of Public Administration (2000), where Judge Moran considered 21 different disputed ballot papers in issuing his decision. That work has been made available to the Court and it includes a facsimile of the disputed ballot papers. Similarly, the Minister’s submissions note the case before Hamilton P on the petition challenging European election, In the Matter of the European Parliament Elections for the Constituency of Leinster 1989 (The Petition of Michael Bell), in November 1989, where the judge examined the relevant ballot papers and established to the satisfaction of all sides that even if these ballot papers had been included, the petitioner would not have been elected either way; referenced in Whelan - Politics, Elections and the Law (Dublin, 2000). The transcript of that decision of 24 November 1989 has been furnished. Hamilton P considered all the relevant ballot papers, it appears with assistance from an expert, and did a count which established that the election result would have been the same. There was no reason not to do the same on this election petition. Here, as there were 57 ballot papers to be excluded, it is not beyond proof to show the probable effect of that on the outcome of this election. These precedents, while not binding this Court, indicate that only by producing the disputed ballots to a judge can a candidate on an election petition “establish” that the result of the election would have been different.
5. The figures recorded as primary fact by the trial judge, His Honour Judge Moran of the South Western Circuit, are that there were 230 doubtful ballots. The returning officer rejected 173 of these and admitted 57 as valid. Turning shortly to whether a recount involves a reconsideration of all 230 ballot papers, it is the 57 admitted that are here of importance. The transcript of the hearing elucidates that the extraction and calculation of the effect of these renders it possible to demonstrate the probable outcome of their exclusion from the recount. Those challenging an election result must do that. On 18 June 2014, the second day of the hearing before Judge Moran, the deputy returning officer Michael McMahon, responsible for the Listowel electoral area, explained how the issues concerning ballot papers with a numerical sequence beginning later than a ‘1’ were dealt with by him. Any ballot paper which was rejected was stamped ‘rejected’ and was put aside. This did not form part of the count and, consequently, those ballot papers were never included in the bundles upon which the proportional representation system is based. As to an admitted ballot, where there had been a dispute or a potential dispute, this was stamped ‘valid’ and then subject to the procedure as explained by the witness thus:
In some cases where I made it clear, without interfering with a mark that was on the ballot paper, I made it clear what my ruling was in either in admitting it or in terms of future counts because I didn’t want a situation where a vote might be disputed or that the staff wouldn’t be clear what my decision was … Beside the three, four and five in a green biro I wrote one, two, three … to give a clear indication - these papers are then going - being given back to the counters who had already raised them as doubtful papers and I’m giving a clear indication to those counters of what I’m allowing.
He described the process of taking “about an hour”. These ballot papers are identifiable from the stamp and from the green biro corrections. There absence from the case should be fatal to the proof of the petition.
6. The trial judge, dealing with this issue, although holding against the petitioner on the issue by deciding that a recount cannot include a re-examination of doubtful ballots, and in holding that the returning officer did not have a duty to ensure that the petitioner was present at any adjudication of doubtful ballots, and holding that it was valid that later numerical sequence beyond one commencing with ‘1’ allowed such votes as valid, also held as follows:
First, Mr Patrick Enright, solicitor and election agent for Mr Kennelly, one of the candidates, testified that he was at the adjudication of doubtful ballots, that very little was said by any of the persons present, but he, Mr Enright made the most representations, and that very little, if anything, which he said influenced the returning officer to change his mind. Mr Enright’s recollection is that there was just one doubtful ballot which aroused any real interest. Secondly, the petitioner, on whom is the burden of proof, has not produced any evidence to contradict the said evidence of Mr Enright. Thirdly, there was no controversy about the adjudication of doubtful ballots and there is no reason to conclude that the returning officer would have, or should have, altered any decision by reason of the presence of the petitioner or by reason of any representation made by the petitioner or anyone on his behalf.
7. While the above describes a consensus among the candidates present at the doubtful ballot examination in favour of admitting ballot papers commencing within an apparent first preference beyond ‘1’, it remains a matter of speculation, where physical proof was possible, that the exclusion of 57 ballot papers from the thousands cast would have resulted in a different election outcome. Of course, that is possible, but the onus is on the petitioner to “establish” a different outcome. That outcome can be for or against Dan Kiely or for or against another candidate; but probable proof that the complained irregularity would lead to a different result is required. Hence, the dissent on this point.
8. On the main issue of ‘3’, ‘4’, ‘5’ etc becoming ‘1’, ‘2’, ‘3’ and so on, it is difficult not to feel sympathy for the returning officer. Experience in prior elections had shown two distinctive approaches taken by the Irish electorate. One was a form of expression which was by demonstrating a first preference with a tick or an ‘X’ and continuing with the next preferences as ‘2’, ‘3’, ‘4’. That process demonstrates a clear choice and one which, on any reasonable analysis, is unambiguous. There is nothing to indicate that the admission of such ballots falls foul of the relevant legislation. The other, however, demonstrates a dangerous ambiguity. Certainly, it is the case that the evidence before Judge Moran was that where a European election was coupled with a local election, a not insignificant group of people continued on their preferences from one ballot paper and into the other as if the choices were amalgamated. Where people had chosen ‘1’, ‘2’, ‘3’, ‘4’ etc on the European ballot they expressed their first and following preferences on the local ballot paper by a ‘5’, ‘6’, ‘7’ and so on. This resulted in the flaw demonstrated in the 57 local election papers in question here.
9. While returning officers are understandably keen not to disenfranchise people, as Clarke J states in his judgment, the problem is in the ambiguity of apparent choice. Perhaps some people decide who is the candidate whom they like the least and then work backwards. Possibly others decide that there are certain candidates they definitely will not vote for; consequently if they start with their last preference it will not necessarily be the number ‘15’ that marks that choice even though there are in fact 15 names on the ballot paper. How does one know that a person has not promised a third or fourth choice to a particular candidate and decides to mark a ‘3’ or ‘4’ beside their name and then go back to the others, but forgets to fill in their ‘1’ and ‘2’? These, certainly, are speculations and admittedly unlikely ones. But statistically unlikely things happen within a sample of thousands. If the discretion of returning officers was unlimited, and if the legislative rule allowed for any form of choice by a voter no matter how expressed, provided it was sequential, the decision made by the returning officer in this case would have been possible.
10. The problem with such an unfettered discretion is that it makes matters uncertain. Even where that not so, it is beside the point. The legislation governs this situation. The Local Elections Regulations 1995 make it clear that no ballot paper is valid unless the preference begins with “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 …” Thus, an “X” or a "✓ " or “an duine seo” or “this person” or some other indication followed by a ‘2’, ‘3’ and so on is possible as the expression of a valid choice under the Regulations. What that naturally says in that particular context is “this is the woman I want to vote for and here are my second and third preferences.” Should such a single mark be followed not by a ‘2’ but by a ‘3’ or any lower number, then there is a problem. Similarly, commencing a numerical sequence at any random number beyond ‘1’ cannot be within the legislation. Since Article 80(1) gives a definition of a first preference as “any mark which, in the opinion of the returning officer, clearly indicates a first preference”; a clear choice of a candidate in unambiguous terms as the one most preferred for election is not invalidated by a mark on its own or a mark followed sequentially by ‘2’ and ‘3’ etc. By requiring, however, either a ‘1’ or a ‘one’ or a mark which in its context states that this is the start of a sequence, perhaps ‘a’, ‘b’, ‘c’, the Oireachtas has excluded numerical sequences randomly beginning beyond an unambiguous first choice. Regrettably, therefore, since the mistake amounts to the elector disenfranchising themselves in error, the 57 ballot papers having that defect were not within the range of discretion open to the returning officer for inclusion in the vote.
11. Insofar as confusion has arisen in the past where two elections to different representative bodies are run together, and may be predicted as likely to return in the future, clearly different colours as to ballot papers, an education campaign through the media, or a simple instruction and giving out each ballot paper by the returning officer would surely correct the error. A suggested wording might be: “Now mark this one here ‘1’, ‘2’, ‘3’ and so on in order of your choice and this other ballot paper you do exactly the same thing marking it ‘1’, ‘2’, ‘3’ in order of your choice: they are separate.”
12. Much of the evidence before Judge Moran was taken up with the issue of the exclusion of the 173 rejected ballot papers and as to why, when a recount might be called, these were not also subject to reassessment for possible inclusion in the bundles. The transcript makes it clear that these rejected ballots were ruled out from any form of counting in accordance with the legislation. The time to raise any query in relation to that process was in the early stages of scrutiny. The duty is on the candidate to be present, as opposed to placing an impossible burden on the returning officer to require their attendance. Article 78 of the Regulations makes it clear that it is the duty of the returning officer to scrutinise the ballot papers “with the purpose of discovering any papers liable to be rejected as invalid”. The invalidity may arise from, for instance: a voter not voting at all; or registering a protest through the ballot paper without also filling in a preference; or deciding to identify themselves by, for instance, signing their choice or otherwise writing some identifying matter; or, by mistake or mischief, spoiling their vote. Once rejected, such ballots are not thereafter made part of the count. The count is defined in Article 80(1) of the Regulations as:
… all of the operations involved in counting the first preferences for candidates; all the operations involved in the transfer of the surplus of candidate deemed to be elected; all operations involved in the transfer of the votes of an excluded candidate; or all operations involved in the transfer of the votes of two or more candidates excluded together.
13. Section 8(1) of the Local Elections (Petition and Disqualifications) Act 1974 enables a court “for the purposes of the trial of a petition” to order “that all the votes cast as the election shall be counted afresh”. Spoilt votes are not part of the total valid poll. The view is here taken that Judge Moran properly relied on Article 81 and interpreted the legislation correctly by giving to that wording its plain meaning. It is unambiguous. This requires the returning officer to reject “the ballot papers … that are invalid”, following mixing. On the legislation, after that point the count begins. The wording makes suggests that there cannot be a recount which involves the reconsideration of rejected ballots. Article 81(2) specifies that it is at that point that the “returning officer shall then count the number of papers in each parcel and credit each candidate with the number of votes equal to the number of valid papers on which a first preference has been recorded for such candidate”. That, in itself, is unambiguous, but it is plain that, as with the familiar announcements over the radio and television, the calculation of the quota is on the basis of the total valid poll. Hence, the obligation is on the returning officer to “ascertain the number of all ballot papers”. If an invalid vote somehow slips through it may be later excluded on it being found in the bundles. It is on this that the proportional representation system of election proceeds.
14. In the result, while an error has been demonstrated, the burden of proof has not been met by the petitioner. In consequence, the petitioner is not entitled on this analysis to a remedy on this appeal.
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 17th day of December, 2015
Introduction:
1. Anyone interested in a democratic system of government will have an interest in the process of democratic elections which in a fundamental way underpins the operation of democracy itself. Not much gives rise to such controversy as disputes on election results: perhaps the more local the election is and the tighter the margin appears to be, the greater intensity that is aroused between the affected candidates and most certainly between their personal supporters. History abounds with examples of late nights, long counts, and multiple recounts, ending either with a generous acknowledgement of defeat or with an over enthusiastic acceptance of victory; or else, as here, with the law becoming involved. Many years on, or even decades later, those involved can vividly recall how a high preference on, say, count 12 was sufficient to accredit victory to their candidate: others will forever believe that it was their man or woman and no other who was deserving of that final seat. However unsatisfactory it is to resort to an election petition, it seems that on occasions it may be the only means of resolving certain difficulties so that the electorate of any given area can be served by all duly elected representatives to the body in question.
2. Throughout the years there have been elections of many different sorts for membership of our national legislature and for membership of more regional or local representative bodies. Whilst there are statutory provisions governing all such elections, there are also constitutional provisions of relevance. For Dáil and Seanad elections one can refer to Article 16 and Article 18 of the Constitution respectively. Some of the matters so specified can be considered as stand alone provisions, whilst the detail of many others is to be regulated by law. It is only necessary to note for our purpose that voting shall be by way of secret ballot and that members of both Houses shall be elected on a system of proportional representation by means of a single transferable vote. (Article 16(5) and Article 18(5) respectively). Given this system of proportional representation, which applies equally to local elections, as distinct from say the first-past-the-post system, one can see how important every single vote and every preference might be, in a closely contested election.
3. For many years the role of local government was not recognised at all in the Constitution, but following the Twentieth Amendment, approved by the people in 1999, a new provision was added to the text. Article 28A(1) and (2) read as follows:-
“1. The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.
2. There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution, be so determined and shall be exercised and performed in accordance with law.”
4. It is not in any way necessary to examine these provisions, either as to meaning or scope. Laffoy J. in Ring v. the Attorney General [2004] 2 I.R. 185 at 201 felt that these provisions simply recognised the role of local government rather than guaranteeing it, as did Birmingham J. in O’Doherty v. the Attorney General & Ors [2010] 3 IR 482. Whatever the exact designation of this Article, it is however clear that the importance of democracy, through local elections, has been enshrined in our law at constitutional level. Therefore, whilst nothing directly turns on these provisions in this case, the background and context is of itself worthy of note.
The Parties:
5. Mr. Kiely is the petitioner/appellant and, as will appear immediately next, was an unsuccessful candidate in the election, the subject matter of this case. Kerry County Council, which is responsible for the conduct of the election, is the respondent in both the petition and in this appeal and evidently represents the deputy returning officer, Mr. Michael McMahon, who was in charge of the election in question. The first named notice party was a successful candidate in the election and whilst so named has not participated on this appeal. Mr. Moloney and Mr. Kennelly were also successful candidates, but only by a margin which potentially could be affected if the petitioner should be successful in the case. The former has been represented by solicitor and counsel who have made submissions on his behalf to this Court. Mr. O’Gorman is a further notice party who was eliminated from the election on the ninth count. He has also made submissions on this appeal. Finally, though remaining entirely neutral as between the candidates, the Minister for the Environment, Community and Local Government was also represented and oral submissions were made on his behalf which augmented those previously submitted in written form.
The Context:
6. On the 23rd May, 2014, there was held in this country an election to the European Parliament (“the European Election”) and on the same occasion there was also held what I will describe as “local elections” for each local electoral area (paras. 30-32 infra). Whilst neither the conduct or the result of the European Election are of themselves directly significant, the fact of it being held simultaneous with the local elections plays a key role in the surviving issues which have been addressed on this appeal.
7. The local election in question arises out of that held for the Listowel electoral area of North Kerry. After the eleventh and final count, there were five continuing candidates, none of whom had reached the quota for the remaining four seats. The deputy returning officer who was in charge eliminated Mr. Dan Kiely, who was the candidate with the least number of votes at that stage of the count. After a recount was called for and carried out, the result did not change. Therefore, Mr. Kiely failed to obtain a seat. By petition he challenged the legality of how the returning officer had conducted certain aspects of the overall count. Having failed in the Circuit Court he has now appealed to this Court, which apparently is the first occasion (ever) upon which such a procedure has been adopted. This judgment deals only with the live issues advanced on his behalf at the hearing.
8. Although it will be necessary to explain more fully later in this judgment the complaints raised in the petition and the issues dealt with by the trial judge in his decision, it would be convenient at this stage to briefly describe the principal ground relied upon this appeal. A notice party, Mr. O’Gorman, raised additional matters which will be dealt with separately (paras. 81-82 infra). The ground advanced is based on the fact that unless a ballot paper “clearly indicates” a first preference, it is not valid. If it does but fails to clearly indicate a second preference or if it also clearly indicates a second preference but not a third preference etc, it remains valid for the first or second preference as the case may be, but thereafter becomes a non-transferable paper. It is the first of these situations that we are essentially concerned with.
9. The total poll for the electoral area in question numbered 14,929: the valid poll was 14,756, thus giving a number for spoilt or invalid votes of 173. This last mentioned figure, which is not in controversy, was arrived at by the returning officer after he had firstly scrutinised the entire poll so as to indentify what were classified as “doubtful votes” or “doubtful ballot papers”: in all, there were 230 such votes. Having examined each of these papers, he rejected as invalid and so marked, as I have said, 173. He declared as valid the remaining number, which, although not so admitted by the Council, I propose to take as being 57, as there is a justifiable finding to this effect by the trial judge (“the disputed papers”). The returning officer also marked these papers in a manner which I will describe in a moment. It is only a handful of these papers which remain in issue and which for reasons which will become immediately obvious I will sometimes also refer to these as “the sequenced votes” or “papers”.
10. Mr. Kiely alleges that an unspecified number of the disputed papers had the numbered sequence 3, 4 and 5 or 4, 5 and 6 written on them, with each digit being placed against the names of different individual candidates: these papers did not have the figure 1, or the figures 1 and 2, or, if the sequence displayed was 4, 5 and 6, did not have the figures 1, 2 and 3 recorded on them. In fact in no part of any of those papers did the figures last mentioned or their equivalent in word form appear. Likewise, no roman numerals were used and neither, for that matter, was any other form of mark such as “X” (which traditionally has been accepted as demonstrating a first preference). The only indication therefore of a first or subsequent preference was by reference to the numerals 3, 4 and 5, or such similar sequence as may have occurred, commencing with the next higher number, say number 4.
11. In simple terms the petitioner says that the number 3 or the number 4 can never be a number 1: therefore, there was no mark on the sequenced papers evidencing the elector’s first preference for any candidate. Accordingly, these votes should not have been counted. If such papers so styled had been rejected this would likely have had an effect on the election result. The respondent disagrees with this submission and says that the sequence in question was capable of being interpreted as giving a first preference to the candidate against whose name the figure 3 was written, or the figure 4 as the case may be. The Circuit Court so agreed with this argument. This is the context thus giving rise to the first issue raised on this appeal.
Local Elections (Petitions and Disqualifications) Act 1974 (“The 1974 Act”):
12. Local elections are conducted essentially in accordance with the Local Elections Regulations 1995 (S.I. 297/1995) made by the Minister for the Environment, as then titled, in exercise of the powers conferred on him by s. 22 of the Local Government Act 1994. Nothing turns on the power or the exercise of the power to make such Regulations, or on the fact that by virtue of s. 20 of the Electoral (Amendment) Act 2009 (“the 2009 Act”) they are deemed to have statutory effect. Whilst several changes have been made to these Regulations by the 2009 Act, none affect the provisions in play on this appeal, with all parties agreeing that such Regulations remain the essential bedrock which govern virtually all aspects of local elections.
13. At sub-legal level the Department of the Environment, as has been its practice for many years, issues in respect of each local election a document headed “Memorandum for the Guidance of Local Authority Returning Officers” (“the Guidance Memorandum”). It did so as normal for the election in question. Whilst this memorandum featured heavily in the evidence, it has no legal status, at least in the context of the presenting issues on this appeal (paras. 27 and 49-58 infra). In addition, the grounds upon which a local election can be challenged and the means by which that may be done are set out in the 1974 Act, which has been amended in non-relevant from by the Local Government Reform Act 2014. It will therefore be convenient at this point in the judgment to set out or otherwise refer to the relevant provisions of these statutory measures so that one may be able to more fully understand and follow the argument that has been addressed. First, therefore, the 1974 Act.
14. A local election may only “be questioned” by the presentation of a petition to the Circuit Court (s. 2). Such a petition may be taken out “by any person over the age of eighteen”: it must issue within 28 days after the result of the election is declared save that, where the allegation is one of improper payment or a bribe such a petition, or indeed even a second petition, can issue within 28 days after the payment or the bribe has been made, as the case may be (s. 4). Whatever the grounds of challenge may be, one cannot question a local election after the period of twelve months from the date of the declaration: thereafter “…the election shall be deemed to be valid for all purposes” (s. 19).
15. Subject to an additional subsection, inserted by the Local Elections (Disclosure of Donations and Expenditure) Act 1999, which is not relevant, a local election may be questioned where it is alleged that a candidate is not qualified to run, that the conduct of the election has been obstructed, interfered with or hindered, or that a mistake or other irregularity has occurred. Without prejudice to the generality of the foregoing, s. 5(1) of the 1974 Act sets out three particular grounds which may be specified in a petition, namely that:-
“5-(1) …
(a) a local election was affected by error or was not completed or was otherwise not conducted by a returning officer in accordance with law,
(b) a local election was affected by electoral offences,
(c) a person at a local election was, on the date of his nomination, not qualified for membership of the relevant local authority.”
Furthermore, following the establishment of any such grounds, the petitioner must also satisfy the court that the ground so found is “…likely to have affected the result of the election…”. All of these matters are provided for in s. 5 of the Act.
16. Where a petition has issued, it shall be tried by a judge of the Circuit Court within whose area the principal offices of the local authority in question is situated. For the purposes of the trial the following provisions apply:-
“8 -(1) The court may, for the purposes of the trial of a petition, if it thinks fit, order -
(a) that all the votes cast at the election shall be counted afresh,
(b) that all the votes cast in particular electoral area shall be so counted,
(c) that all the votes so cast and recorded on the ballot papers contained in a particular parcel shall be so counted,
and where the court so orders, the provisions of the following subsections shall have effect.
(2) Votes to which an order under this section relates shall be counted afresh under the direction of the court and, subject to subsections (3) and (4) of this section, and to such modifications (if any) as the court considers necessary, the provisions of any Regulations made by the Minister under section 82 of the Act of 1963 relating to the counting of votes at a local election shall apply to such counting.
(3) Where votes are counted afresh pursuant to an order under the section, the court shall cause the following to be ignored:-
(a) preferences recorded on valid papers which are invalid by virtue of Regulations made by the Minister pursuant to section 82 of the Act of 1963,
(b) preferences recorded on forged or counter fitted ballot papers, and
(c) preferences recorded for any person who, with respect to the relevant election, was found by the court not to have been qualified for membership of the local authority.
(4) The court shall have power to reverse any decision of a returning officer at the original count.
(5) The cost of giving effect to an order under the section shall be paid by the local authority concerned.”
17. Having determined the complaint at issue in the petition, the court by way of final order has the power to:-
(a) Issue a declaration of the correct result of the election, or
(b) If it is unable to determine that result, grant a declaration that the whole of the election or a specified part thereof was void together with a statement of its reasons for making the declaration.
In addition, the court has power to give effect to the consequences of any decision made by it in respect of the persons who were or who should correctly be considered as elected members of the local authority (s. 14 of the 1974 Act).
18. Finally, the court of trial has the option, given to it by s. 23 of the Act, to state a case for the opinion of the Supreme Court on any question of law arising during the trial (s. 23 of the Act); in addition, any party to the petition who is dissatisfied with the determination of the Circuit Court is entitled to appeal against that decision to this Court, again on any question of law: subject thereto the decision of this Court shall be final and not appealable. (s. 7(3) of the Act). It is by virtue of this provision that the present appeal has found its way to this Court.
The Local Election Regulations 1995 (S.I. No. 297/1995) (“The Regulations”):
19. This is the legislative measure which sets out in detailed form the provisions by which all of the essential steps in the conduct of a local election are to be taken. As the Regulations are extensive in nature, I will confine myself to those provisions which are directly in issue, which incidentally are in some cases identical with and in all cases are substantially the same as like provisions relating to national elections. These are largely to be found in Part XIII of the Regulations, but a limited number of other Articles must also be referred to.
20. As can be imagined, the returning officer plays a critical role in the administrative scaffolding without which such elections could not be orderly conducted. For that purpose there is placed on him or her a general duty to do all such acts and things “as may be necessary for effectually conducting the election” in accordance with such Regulations: a duty in almost identical wording can be found as far back as s. 8 of the Ballot Act 1872. Obviously this includes an obligation to ascertain and declare the result and to furnish to the local authority in question a return of those persons who have been duly elected (Article 5). He may appoint one or more persons as deputy returning officers to help him with his functions. (Article 6). He is responsible for giving public notice of the election and for receiving the nomination of those who intend to run. He is in charge of the postal votes and voting by special voters (Articles 29 and 43). He makes all the necessary arrangements for holding the poll, including the production of the required ballot papers (Part X of the Regulations). He is in charge of the poll, responsible for ascertaining the total poll, the quota and for the counting of votes: he also adjudicates on the validity or invalidity of ballot papers. He makes the declaration of those who have been successful. He and his team have several other ancillary functions, the details of which are not required to be further set out in this judgment.
21. Part XIII sets out the requirements for the counting of votes; these are designed at a detailed level to facilitate the practical implementation of the relevant provisions of the 1974 Act. In as brief a form as the context allows the following should be noted:-
(i) A “continuing candidate” is a candidate not deemed to be elected and not excluded.
(ii) “count” means the operation of counting all of the first preferences for one or more candidates, of dealing with surpluses where they arise and of excluding candidates where that occurs.
(iii) (a) “non-transferable paper” means a ballot paper where no second or subsequent preference is recorded for a continuing candidate,
(b) a paper shall be deemed to have become a non-transferable paper:-
· where the same order of preference is given to two or more candidates,
· where the next order of preference does not follow consecutively after some other mark on the ballot paper, or is marked with two or more marks,
· where the paper is void for uncertainty.
All of these matters are governed by Article 80(1) of the Regulations.
22. Within that particular Article there is also a definition of what is meant by a first, second and third preference. A reference to one such description is sufficient for my purpose: accordingly,
“A “first preference” means any mark which, in the opinion of the returning officer, clearly indicates a first preference.”
All other preferences, with the obvious adjustments, are likewise styled. The authority so given to the returning officer in this context is an important matter and is one which I will later deal with in this judgment (paras. 45-47 infra).
23. Article 80(2) of the Regulations declares that any ballot paper suffering from the following shall not be counted; in effect these are considered as spoilt votes:-
(i) one which does not have the official mark,
(ii) one which, in the opinion of the returning officer does not “clearly indicate” a first preference for some candidate,
(iii) one which, in the opinion of the returning officer indicates a first preference for more than one candidate, and
(iv) one which, in the opinion of the returning officer is calculated to identify the elector.
Under subpara. (3) of Article 80, the returning officer shall endorse the word “rejected” on such ballot papers and shall record the number of such papers. He shall also indicate which of the “doubtful ballot papers” he accepts as valid and should so indicate that decision on each such ballot paper, without otherwise interfering with that paper (s. 80(5)).
24. Article 81(1) provides that after the ballot papers have been mixed the retuning officer shall, rejecting any of the ballot papers that are invalid, arrange them in parcels according to the first preference recorded for each candidate. He shall then count the number of such preferences in each parcel and credit each candidate as appropriate. The reference to ballot papers having been mixed is a reference to what occurs once the boxes are initially opened. Apparently the first act of the returning officer is to count all of the papers in such boxes and then compare the total number with the number shown in the appropriate ballot paper account, which is the responsibility of the presiding officer. This is immediately followed by mixing the whole of the ballot papers from all of the boxes in respect of the local area in question. As a result the papers are then randomly interchanged with one another as the particular form of proportional representation operating in this country demands. The counting process is then commenced.
25. Reference should also be made to Article 87 of the Regulations. Under subpara. (1) any candidate, at the conclusion of a given count, may request the returning officer to re-examine and recount all or any of the papers dealt with during that particular count, and the returning officer shall accordingly do so. The returning officer may at his own discretion recount the papers from the previous or earlier counts, either once or indeed more than once, if he is not satisfied as to the accuracy of any given count. Article 87(3) then provides:-
“(3) (a) One request (and not more) may be made by each candidate for a complete re-examination and recount of all parcels of ballot papers and the returning officer shall re-examine and recount the parcels of ballot papers accordingly.
(b) In the re-examination and recount, the number or order of ballot papers in any parcel shall not be disturbed.”
It is therefore feasible to have a single count re-examined or, as happened in this case, to have a full recount of all the parcels of ballot papers. Whether the papers rejected initially as invalid should form part of a full recount was once hotly contested in this case: it is however no longer an issue. I will therefore defer offering any view on the point until it directly arises in some future case.
26. The only other provision of note is that found in Article 91, which says that the decision of the returning officer on a question which arises in relation to a ballot paper or transfer of votes shall be final, subject only to an election petition. Finally, it should be pointed out that a form of ballot paper is attached to the Regulations with instructions given to the elector, placed immediately after the names of the candidates, as to how it should be filled in: it says “Write 1 beside the name of the candidate of your first choice, 2 beside your second choice and so on”.
The Guidance Memorandum:
27. This document, as I have said (para. 13 supra), is an aid to returning officers when discharging their functions after a local election has been called. It is an impressive document with regards to both detail and length. It deals with most aspects of what different situations a returning officer might encounter during the course of an election and offers guidance when decisions are called upon to be made. Section 12 is headed “Invalid Ballot Papers,” with section 13 dealing with “The Count”. It is undoubtedly non-binding and has no legal status. In case of conflict or even ambiguity, it must therefore yield to the 1974 Act and to the Regulations above mentioned. Even allowing for its standing, however, it deserves some mention.
28. Having stated that any mark which indicates the intention of the voter with reasonable certainty should be accepted, it goes on to state that normally a first preference is indicated by the figure 1, a second preference by the figure 2 and so on. Where so marked the paper is a valid one: as is one without such figures but having mark(s) which likewise clearly describe a preference or preferences. Examples given are an “X” or a single tick, or where roman numerals are used. It then states that the use of double digits, such as 11, 22 and 33, are also allowed, although why this might be the case has never been explained. Of direct significance in this case however is another example given, of a variation to what undoubtedly is the most commonly used mark, namely the figures 1, 2 and 3. At p. 52 the following appears:-
“A sequence which starts with a number other than 1 e.g., 3, 4, 5, 6 - (discuss with agents - see below).”
This aspect of the Guidance Memorandum is further discussed below (para. 55 infra).
29. On the following page, exactly the same type of sequence is returned to, but on this occasion what is stated is different:-
“In this connection, and for the purpose of consistency, returning officers should accept as valid individual ballot papers which include a sequence of preferences (e.g. 4, 5, 6, or 6, 7) which suggest that voters followed on from preferences recorded on the ballot papers at another election held on the same day.” (emphasis added)
Again, that part of the statement which is emphasised has a significance which becomes evident later in this judgment. Finally, it assures the returning officer that subject to an election petition, his decision on any disputed question arising out of the counting of votes is final.
A Bit More of the Background:
30. Mr. Kiely had previously contested many elections; in every election prior to the one in question, he had run as a candidate representing the Fianna Fáil party. Having failed to get a nomination from that party, he ran as an independent in the May, 2014 Election, which in his area had a total of fifteen candidates for seven seats. As such, he therefore did not have available to him the support of a party machine, in particular for the purposes of and during the counting process. Normally there would be an agent(s) of the party present at all stages during this operation so that if any issue(s) of concern arose, he or she could represent the interests of the party candidates. Whilst the petitioner, as an independent, could also have nominated a person to act as his agent, he did not in fact do so. Given that he did not arrive at the count centre until the third count was underway, by which stage two candidates had been elected and two more had been eliminated, he was therefore unrepresented at all stages prior to his arrival.
31. Once the polling stations had closed on the 23rd May, 2014, all of the ballot boxes throughout the county for both elections were taken to the Killarney Sports & Leisure Centre, where they were opened at 9.00am on the 24th May. Per the judgment of the election court, the papers from the European boxes were separated from those cast in the local election: the boxes, inter alia, for the Listowel area were then taken to a different count centre, situated in Tralee. Mr. John Flynn was the returning officer for the local elections, with Mr. Michael McMahon being his deputy returning officer: Mr. McMahon, once appointed, had the same duties and responsibilities as the returning officer. As previously agreed between them, Mr. Flynn took charge of the electoral areas of Kenmare and Killarney, with Mr. McMahon being responsible for the Tralee and Listowel areas. Whilst it was not possible to indicate in advance precisely when counting would commence for the last mentioned districts, it was envisaged and announced to all the candidates that it would be somewhere between 5.30 and 6.00pm on the 24th May, 2014.
32. According to his evidence Mr. Kiely had no complaint with the conduct of the count or the counting process until they had reached the eleventh and last count. At that stage, as above noted, he found himself being eliminated, as he was five votes behind Mr. Moloney and two votes behind Mr. Kennelly. As was his entitlement he sought a full recount. Having spoken with some other people at the count centre who had been present throughout, he was alerted to the fact that when the total poll was being firstly scrutinised for invalid papers, the returning officer had identified 230 “doubtful votes”, of which, as previously stated, he rejected 173 and marked as valid the remaining 57. Mr. Kiely sought to have the rejected ballots re-examined by the counting staff. This request was refused by the returning officer on the basis that he had previously ruled on each of these papers and accordingly, consistent with his practice and that of other returning officers, he would not be re-examining such papers. Mr. Kiely also made some reference to those papers which had been marked as valid, which I have referred to in this judgment as “the disputed papers.” The recount which then took place, whilst disclosing some minor variations from the original, did not affect the ultimate margin of difference between Mr. Kiely and the other two competing candidates. The returning officer thus proceeded to issue a declaration, thereby resulting in Mr. Kiely’s failure to obtain a seat for the Listowel electoral area.
Judgment of the Circuit Court:
33. Arising out of the petition, the evidence tendered at the hearing and the submissions made, the trial judge identified four issues which required his determination. The fourth would only arise as consequential to Mr. Kiely’s success on one or more of the other issues.
34. The first matter dealt with was based on an allegation that the returning officer was incorrect in not re-examining as part of the full recount afforded to the petitioner the total number of doubtful votes, in all the 230 papers above mentioned (Issue No. 1). The second point was that the returning officer was likewise incorrect in adjudicating on these papers without the petitioner being present, or otherwise being represented (Issue No. 2). The learned judge dismissed both of these grounds and neither has been pursued on this appeal. Accordingly, as it is not necessary to address either point, I have not considered whether the trial judge was correct as a matter of law in concluding as he did on such matters.
35. Having rejected the above grounds of complaint that left the third issue, which has been above described at paras. 8 and 9 of this judgment, and also the follow-on issue which strictly speaking did not arise, given the trial judge’s rejection also of this ground. The judge however went on to deal with it and so a reference must likewise be made to his views on this point.
Issue No. 3 in the Judgment:
36. Was the returning officer entitled to admit as valid those ballot papers which only had written on them the sequence 3, 4 and 5 or 4, 5 and 6 or the like without any other indication of what the elector’s first preference was? In rejecting Mr. Kiely’s challenge in this regard, the learned judge adopted the rationale advanced by the returning officer as justifying the decision which he had made: this was:-
(1) that by reference to Article 80(2) of the Regulations it clearly was the case that a first preference could be indicated by way of a mark, other than by the number 1,
(2) that the holding of a second election on the same occasion was a relevant factor,
(3) that where there were two simultaneous elections, the Guidance Memorandum advised that papers starting with a sequence 3, 4 and 5 or 4, 5 and 6, as the case may be, could be accepted as valid,
(4) that such decision reflected commonsense and avoided needless disenfranchising of voters, and
(5) that it was consistent with a reasonable interpretation of the Regulations.
For these reasons he agreed with the decision of the returning officer.
Issue No. 4 in the Judgment:
37. Rightfully pointing out that this issue only arose if Mr. Kiely was successful on one of the other grounds pleaded, the trial judge nonetheless went on to express a view on this final matter: this was whether the result of the election might have been different if the petitioner had been successful on any such ground. In rejecting the case advanced under this heading, the learned judge gave as his reasons the following:-
(1) that according to Mr. Enright, a solicitor by profession and the election agent for Mr. Kennelly, who was present at the adjudication of the doubtful ballots, there was very little chance of changing the mind of the returning officer once he had made a decision on these papers;
(2) that in any event there was just one doubtful ballot which aroused any real interest or discussion;
(3) that the petitioner had not adduced any evidence to contradict that given by Mr. Enright;
(4) that even if present, it is highly unlikely that any representation made by or on behalf of Mr. Kiely would have influenced the returning officer; and
(5) that from a photograph of the count centre, timed at 20.36 on the 24th May, 2014, there were only about seven persons present at this adjudication.
Accordingly, for these reasons the outcome would not have been altered even if the circumstances as postulated had occurred.
Submissions
The Petitioner:
38. The petitioner submits that to treat a sequence of 3, 4 and 5 or 4, 5 and 6, as equivalent to 1, 2 and 3 is illogical, invalid, unwarranted and against principle. Of even more significance, he says, is that it is contrary to the 1995 Regulations. Whilst he has advanced a variety of arguments as to the correct meaning of the word “mark” in the context of the definition of a first, second or third “preference” in Article 80(1) of the Regulations (para. 22 supra), and as to the distinction between a mark and numerals for that purpose, his most fundamental point is that it is impermissible in law to deduce from such a sequence(s) the conclusion which the returning officer arrived at. Whilst acknowledging the desirability of reflecting the votes of all persons who are entitled to vote and who in fact exercise their franchise, a returning officer cannot take it upon himself, even if supported by fellow colleagues throughout the country, to determine policy in this respect. That is a matter solely for the Oireachtas, which has singularly not legislated for the actions undertaken by the returning officer. In fact, the provisions as enacted are quite to the contrary. Moreover, the fact that a second election was being held on the same day was entirely irrelevant in legislative terms. Therefore, Mr. McMahon’s decision in this regard and that of the trial judge in accepting such decision as valid were incorrect in law.
39. On the second issue (Issues No. 4) it is submitted by Mr. Kiely that, if successful on the above point, there is sufficient evidence in the case to indicate that at least some votes with this sequence(s) were marked as valid and thus allowed in by the returning officer. Whilst the number is not precisely known, and it may indeed be small, nonetheless in light of the margins which at the final count separated him from the fourth and fifth candidates, who were elected, and given the importance of any preference in a single transferable system such as ours, it is probable that if the “sequenced” votes were discounted, the same would be likely to affect the election result. Consequently, it is asserted that he is entitled to succeed on both grounds.
Kerry County Council:
40. In response, Kerry County Council essentially relies on the same justification for the actions of the returning officer which were advanced before the Circuit Court and which are set out at paras. 36-37 supra. It points out that under the provisions of Article 80(1) of the Regulations, any mark, which in its submission must also include a number, is capable of representing a first preference if the entry in the ballot paper is otherwise clear and correct. Reference is made to the evidence tendered at the trial as to the custom and practice of returning officers throughout the country when dealing with ballot papers so sequenced in circumstances where more than one election is held simultaneously. It states that this approach is entirely consistent with the desire to avoid needlessly disenfranchising those who exercise their right to vote and in any event, is consistent with the Regulations.
41. In addition, again under the provisions of Article 80(1) of the Regulations, it is for the returning officer to make a decision as to whether a mark on a ballot paper “clearly indicates a first preference”. In fact, a “first preference” is described as meaning any mark which “in the opinion of the returning officer” clearly indicates a first preference. Given the unique role of this office in the electoral system, once a decision has been made by him the courts “should be slow” to interfere with it, unless it is irrational or is inconsistent with legal requirements. Such a cautious approach, which should be applied by both the petition court and any appellate court, is reflective of Article 91 of the Regulations which states that any such decision is final, save for a challenge by petition.
Discussion/Decision
42. It is not altogether certain as to what precise ground the petitioner is relying upon, as questioning in effect the counting process of the election in issue. It is clear that he must frame his action within the confines of s. 5(1) of the 1974 Act, but as set out at para. 15 above, this provision refers to a number of different grounds including mistake and irregularity; in all probability, however, it is the more general ground set out in subs (1)(a) of s. 5 which he is invoking. This view is I think justified in an overall sense and thus I take his case to be that the election “…was affected by error or was not completed or was otherwise not conducted by the returning officer in accordance with law…” (s. 5(1)(a) of the 1974 Act). In any event, it may not matter a great deal in practice as there may well be an overlap between what is there provided for and the more specific grounds of mistake and irregularity.
43. Even, however, if he should be successful on this ground, or indeed on any ground, he must also succeed on the second requirement of s. 5, which is that the established complaint “…is likely to have affected the result of the election…”: unless he demonstrates this, he is not entitled to any relief under the Act. Undoubtedly, he carries the onus of proof on both points: even without authority I would have been surprised to encounter any argument that the standard of proof should be anything other than that normally applying in civil actions. Even with much more complicated “non-mechanical” issues and the inevitable evidential difficulties which these give rise to, as evidenced in the referendum cases of Hanafin v. Minister for the Environment [1996] 2 IR 321 and Jordan v. Minister for Children [2015] IESC 33, this Court on both occasions has so confirmed (see para. 84 infra).
44. Apart from describing what Mr. Kiely must establish under the 1974 Act before the court will engage itself in deciding what remedial steps might be appropriate, very little else of that Act requires debate as many of its provisions are not in dispute between the parties. No submissions were made as to the meaning of the phrase, in s. 2, that a local election may only “be questioned” via the petitioning process. Nor was there any discussion on the scope of an appeal to this Court as provided for by s. 7(3) of the Act. Whilst some comments were made on what votes would be involved if the court should make an order under s. 8(1)(a) or (b) of the Act - “…that all votes so cast…shall be counted afresh” - it seems to be accepted - or at least acquiesced in - by all parties that this phrase, common to both provisions, should be given its literal meaning. In any event, this is a point I will return to later. What legal argument there was centred more directly on the Regulations and, in particular, on the position of the returning officer as provided therein.
45. Whilst it is undoubtedly the case that the role of the returning officer is indispensable to the election process, it is also evidently the case that he or she, in fulfilling that role, is a creature of statute and is bound by the terms of the express legislative provisions above referred to. Accordingly, in the performance of his (or her, as the case may be) duties and functions he must be guided by the principles so laid down in such legislation, within which is set out the framework where those whose names are validly on the register of electors can give effect to the franchise so vested in them. He must obviously not exceed the limits of the competence so conferred on him: he is therefore confined to what can legitimately be extracted from the provisions in issue, either by way of express conferment or necessary intendment. He cannot operate in excess of these limitations. He cannot, for example, justify any act or action, however desirable his intentions might be, based on any form of inherent power for the simple reason that his office is not amenable to attract competence in this way. When the occasion arises it therefore becomes a matter of statutory interpretation as to whether or not the act or omission complained of is within the competence of his office to perform.
46. As the statutory regime makes clear, the returning officer has a number of significant functions, some of which are of a decision making type, with important consequences for those involved. These include adjudicating on issues which may have an effect, ranging from the minimal to the fundamental, on several matters of significance, such as a voter’s right to exercise their franchise, an elector’s right to have a valid ballot paper admitted and his preferences accurately distributed, a candidate’s right to have all the papers cast properly assessed for their validity and to have those rightly admitted, counted and allocated in accordance with the Regulations. Moreover, as part of this process all involved have a rightful concern to ensure that no paper should be admitted or rejected save in circumstances as prescribed by law. Furthermore, the people as a body and the State as an institution have an overarching interest in ensuring the integrity of the democratic process.
47. The 1995 Regulations, when outlining how the officer holder should exercise his functions and duties, express the scope of his decision making authority in slightly different ways. Of particular interest to this case are the occasions where such decisions are based upon “…the opinion of the returning officer…” (para. 22 supra). The Minister in his submissions suggests that there are about eighty separate references to this phrase in the Regulations. Evidently, the circumstances in which it is used will differ but in the context of this case, the question immediately arises as to what the phrase actually means, what are the parameters within which such an opinion must be formed and arrived at, and in what circumstances and by what test can that opinion be challenged (if at all), either in the petitioning court or on appellate review in this Court.
48. In adjudicating upon Issue No. 3, the Circuit Court judge was heavily impressed, firstly, by what is contained in the Guidance Memorandum, secondly, by what the practice is, not only amongst returning officers in County Kerry but also generally throughout the country - as represented by the evidence of Mr. Martin Harvey and Mr. John Fitzpatrick (paras 51-53 infra) - and, thirdly, by the understandable motivation of the deputy returning officer, who testified that if at all possible he would recognise the franchise of those who voted. Whilst I do not place over reliance on the manner in which he approached this issue, nonetheless it is of note that a consideration of the Regulations does not appear to have been foremost in his analysis of this point. Each of the factors relied upon are worthy of consideration.
Guidance Memorandum:
49. Since at least 1979 the Department of the Environment, in its various manifestations, has produced documentary guidance for returning officers in advance of each election held and also of each referendum conducted. It did likewise for the local election held in May, 2014. It is said that its content is based on the experience gained and lessons learned from the conduct of such elections over the years, and it thus reflects best practice at any given time. The Department, whilst expecting that returning officers will have regard to what it says, nonetheless emphasises the independence of such officers, acknowledging as is undoubtedly the case that at all stages the decision of that office holder must be his, and his alone.
50. At paras. 27-29 of this judgment, I have referred to Sections 12 and 13 of the Guidance Memorandum. As will be recalled, reference is made on two separate occasions to ballot papers which commence with a sequence such as 3, 4 and 5 or 4, 5 and 6: at the first reference point the advice offered to the returning officer, when adjudicating on the validity of such a paper, is to “discuss with agents - see below”. At the second point, the advice is more definitive: it is to accept as valid all such a papers. The justification in this instance is that such a sequence “…suggests that voters followed on from preferences recorded on the ballot papers at another election held on the same day”. Therefore, the simultaneous holding of a second election on the same occasion, as happened in this case, would appear to be the defining distinction between “discuss” and “accept” as set out (but see para. 74 infra).
51. The experience which gave rise to the advice last mentioned can clearly be seen from the evidence given in this case, in particular, that of Mr. John Fitzpatrick and Mr. Martin Harvey.
52. Mr. Fitzpatrick, who was the returning officer for the County of Dublin for more than 35 years until his retirement in 2013, and who thus has considerable experience in this area, explained that on the first occasion when a national and European election were held together, he discovered that there were a lot of European election papers which were marked 4, 5 and 6 etc, but which did not contain any numbers 1, 2 or 3, in any form of expression. Having checked with fellow colleagues he found that a similar experience was being encountered by them. He mentioned in particular the returning officer for Dublin City at the time, Mr. Michael Hayes. So, in discussion it was decided that on a multi-election occasion those papers with such a sequence, consecutive in number, should be admitted as valid unless otherwise distorted.
53. Mr. Harvey, a practising solicitor and the returning officer for Cork City since 1991, was of a similar view to that of Mr. Fitzpatrick. He said that a paper with such a sequence would be accepted where there were two or more elections held on the same occasion, but in a single poll election any vote without the number 1 on the paper, or other recognisable mark to that effect, would be regarded as void. The rationale for the former was a belief that those electors who had used this sequence had firstly filled in their ballot paper for the other election as 1, 2 and 3, and had then switched to the ballot paper for the election in question and continued the sequence 4, 5 and 6 etc. He stated that such papers on the occasions described, would clearly be accepted. His job, if at all possible, was to try and “get votes past the post”, if he could. Incidentally, and of interest only is that in his experience the higher sequence was usually found on the European papers, rather than as here, on the local papers: however, in his view such a distinction was not relevant.
54. The duly appointed returning officer in charge of the May local elections for the County of Kerry was Mr. John Flynn, who was appointed to that post by the manager of the Council. He had fulfilled the same role in 2009 and before he moved to Kerry was the returning officer for Cork City in the 2004 election. He in turn appointed Mr. McMahon as deputy returning officer. Likewise, he had previous experience in that role and had also worked with Mr. Flynn in past elections. In fact their common practice was to meet before each election and agree on a strategy to deal with issues which might arise, both during the polling hours and the counting process. One such matter discussed and agreed upon was the situation where a paper might have the type of sequence at issue in this case. When there were two elections held on the same day, such papers were to be admitted as valid precisely on the same basis as explained by Mr. Harvey. Such had been their practice for the past three elections and neither saw any reason to change it.
55. Mr. Flynn in evidence said that he was satisfied to treat the sequence of say 3, 4 and 5, or 4, 5 and 6, it matters not which one, as being a number 1, 2 and 3. If the sequence however was not consecutive, then at the break point the vote would become non-transferable. Up to that point it was to be treated as valid. This is exactly what happened in the election in question, as it did in the concurrent European election, presided over by the designated officer in respect of that poll. Such a practice was entirely consistent with the guidelines, in which context, however, he was not able to explain what lay behind the advice given “…discuss with agents - see below…” or the double digit sequence of 11, 22, 33 etc, also referred to at page 52 of that document. Perhaps the next version of its presentation will clarify the matter. In any event, he had not come across this particular type of sequence before and thus it had never presented a problem for him.
56. Finally, Mr. McMahon also confirmed his adherence to the guidelines which he followed with regard to such votes whenever he encountered them during an election. In respect of these papers he added that, it was also his practice to write in green biro the numbers 1, 2 and 3 immediately adjacent to the sequence as inserted, without however disturbing the designation made by the voter or otherwise defacing the paper. The reason for this was to give a clear indication to his staff when counting the votes as to what precise value should be given to each vote in such sequence. Finally, he supported this approach for the same reasons as given by the other returning officers above referred to.
57. It must undoubtedly be the case that returning officers throughout the country are greatly assisted by the Guidance Memorandum and in a great number of situations any uncertainty which they may encounter as to what is the correct decision to make is resolved by reference to such document. However, the Memorandum has no statutory foundation and neither does it have any other recognisable basis in law, save perhaps where an issue of “reasonableness” might be raised. In fact, it does not suggest that it has; quite the contrary, at the outset of the document, when dealing with its scope, it sets out its purpose and legal positioning. It says:-
“This memorandum is intended to assist local authority returning officers in the performance of their duties at the 2014 local elections which will be held in conjunction with the European Parliament elections. It does not purport to give a definitive statement of the law on any point; for this, reference should be made to the relevant statutory provisions…”
Therefore, whilst appreciating its invaluable assistance at a practical level, its advices in cases of conflict, uncertainty or doubt, must yield to what is ordained by both the primary legislation and, more significantly in this case, by the Regulations. (Para. 61 infra).
58. In addition to this conclusion relative to the Guidance Memorandum, the same quite evidently must also apply to practices, whether described as being based on custom, tradition or otherwise, which returning officers, apparently at all election levels, follow in any given situation. Likewise, in respect of the commendable desire which such officers have, to validate each and every paper cast if possible to do so. As previously outlined, when a complaint is made about the validity of a returning officer’s decision, giving rise to electoral consequences, that decision howsoever framed must have been made within the legislative parameters of the power conferred on him or her, as the case may be.
The Validity of such Sequenced Votes:
59. It is beyond controversy but that for a paper to be valid it must have recorded on it a first preference. This reflects basic principles of electoral law. It can also be seen from Article 80(2) of the Regulations where it is stated that any ballot paper -
“(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”
shall be invalid and not counted. Accordingly, any paper which fails to disclose such a preference must be rejected.
60. At an election count it is for the returning officer to make a decision on any papers which may fall into this category. He has both a general and specific authority to do so: he is guided in this regard by the provisions of Article 80(1) of the Regulations, which have been previously referred to (paras. 21-22 and para. 47 supra). Thus, he must be “…of opinion…” that the papers so sequenced “…clearly indicate…” a first preference for some candidate. The question therefore on this aspect of the case is whether Mr. McMahon could have been satisfied as a matter of electoral law that the papers so numbered meet this statutory condition.
61. The requirement of a ‘clear indication’ neatly brings into focus a point above made regarding the relationship between the Regulations and the Guidance Memorandum. This phrase can be contrasted with the relevant wording used in the latter which is that a paper should be accepted as valid “…[where it includes] a sequence of preferences (e.g. ‘4, 5, 6’ or ‘6, 7’) which suggest that voters followed on from preferences recorded on the ballot papers at another election held on the same day” (emphasis added). As noted by Hardiman J. in Maguire v. Wright [2002] IESC 21, “…it is trite law that words are to be interpreted according to their natural and ordinary meaning unless there is a legal reason (such as statutory definition) for interpreting them otherwise”. As such, there is in my view a fundamental difference between the wording of the Regulations and the Memorandum in this respect. The word “clearly” is not defined in the Regulations or in the 1974 Act. According to the Oxford Dictionary, it means “without doubt” or “obviously”. One can add I think without controversy, ‘undoubtedly’, ‘distinctly’ and ‘decidedly’. In the same dictionary the word “suggest” is defined as “put forward for consideration”. Again one can add ‘give the impression’ or ‘imply or indicate’. Evidently, and particularly in a legal context, the distinction is sharp and on occasions can be decisive.
62. A good deal of reliance is placed by the respondent County Council, with support from the Minister, on the submission that the decision of Mr. McMahon in question was one which he was authorised to make not only by reference to the “discretion” vested in him at a general level, but also and in particular by his role in determining what a first preference is. Again, Article 80(1) of the Regulations is central to this point (para. 59-61 supra). On the discretion issue it was suggested, admittedly in passing and undoubtedly in a most tentative manner, that given his role and expertise, neither the petitioning court nor this Court on appeal should in effect second guess his decision. In fairness, after some more reflection the respondent’s real position is less stark: the Council says that a court should be slow to interfere with his opinion, and should only do so if the same was irrational or reached in a manner inconsistent with legal requirements. As neither basis has been established it says that this appeal should therefore be dismissed.
63. The petitioner, when requested to formulate what test should be adopted by this Court in evaluating the impugned decision, cautiously suggested that it should rest on some form of ‘reasonableness’, but did not want to be drawn further in this direction. Rather he repeatedly returned to his principal point which was that the issue is one of statutory interpretation, being purely a question of law. No other analysis could be substituted for this, nor was it necessary to discuss or debate any such options. On any view the returning officer should not have arrived at the opinion which he did on the sequenced votes.
64. I am not at all certain that it is correct to say that in deciding whether a particular ballot paper discloses a first preference, the returning officer has a “discretion”, as such in that regard. Certainly not if that term is understood as it generally has been, in the context of the courts’ examination of the exercise of discretionary power. Secondly, I am quite sure that there can be no question of applying any form of curial deference or margin of appreciation or otherwise, as howsoever described, to such decision. This does not mean however, that his overall role is not deserving of respect (para. 67 infra). Thirdly, there is no comparison between his function and the exercise of delegated powers which have given rise to challenges, inter alia, on the ‘principle and policy’ line of authority. And, finally, I also very much doubt whether the yardstick of ‘unreasonableness’ or ‘irrationality’ as set out in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, and as influenced by Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701, is in point. If a decision for whatever reason is ultra vires, no amount of reasonableness or, for that matter, deference or appreciation can render it intra vires. It seems to me that none of these concepts are apposite to an officer designated to perform a particular function within a fairly specific statutory framework (see para. 67 infra).
65. There are I think three possible approaches which the court might consider when looking at this particular decision making function. Subject to the existence of a question of law properly so described, and to the normal appellate constraints such as in Hay v. O’Grady [1992] 1 I.R. 210, I would not see any substantive distinction between the role of the electoral court and this Court, in that regard.
66. These options, I think are as follows: firstly, that the returning officer’s decision is absolute; secondly, that the court can substitute its own views for those of the returning officer; or, thirdly, that some other test might be more appropriate. To favour the first approach would logically mean that any such decision would in effect be rendered immune from the judicial process. Such would constitute a complete ouster of the court’s jurisdiction over this type of controversy and would require the most clear cut of statutory provisions, which obviously is not the case: in fact such a position in any event would be entirely inconsistent with the statutory right to challenge an election result, and to do so on one of the principal grounds set out in s. 5 of the 1974 Act. That evidently therefore is not and cannot in my view be the situation.
67. To adopt the second suggestion, in an overly stringent or rigid way, would involve a failure to give due recognition to the statutory role so vested in the returning officer. Obviously he must take a view and make a call on disputed papers: he is perfectly entitled to draw upon his own knowledge and experience in this regard and such must be respected. In fact, depending on the presenting circumstances he may have considerable latitude in what and how he decides an issue, subject of course to remaining always within his competence. Moreover, at a general level his function is a central and important feature of the law governing the operation of local elections and in Irish electoral law generally. Consequently, for the court to simply substitute its own views for these of the officer would not appropriately reflect the due respect which his role should command. Indeed, that role is deserving of careful protection as it is the critical vehicle for ensuring the orderly running of elections: hence the statutory recognition of its importance in various provisions of the Regulations, including Article 80(1) and Article 91 thereof. Accordingly, due and proper regard must be had to this position. However, where that due and proper respect may rightly be positioned, and within what limits, does not on the view which I have taken on this issue, arise for definitive consideration in this case.
68. If it was necessary to decide on what analytical test should be applied when a returning officer is called upon, in the context of Article 80(1) of the Regulations, to make the type of decision in question, it would in my view in all probability be that as identified by Henchy J. in Lynch v. Cooney [1982] I.R. 337.
69. RTÉ, the National Broadcasting Authority, had agreed to allow Mr. Cooney, the nominee of the Sinn Féin party, to deliver an election address on both national radio and TV, in anticipation of the then forthcoming general election to be held on the 18th February, 1982. The relevant Minister made an order directing the authority to refrain from broadcasting such matter. His power to do so derived from s. 31(1) of the Broadcasting Authority Act 1960, as amended by s. 16 of the Broadcasting Authority (Amendment) Act 1976. Thereunder it was stated that where such Minister “…is of the opinion…” that the broadcasting of a particular matter etc. would be likely to promote, or incite to, crime, or would tend to undermine the authority of the State, he may issue the type of order which he did. On appeal from the High Court’s decision dismissing the prosecutor’s challenge, the Supreme Court delivered a number of judgments but only that of Henchy J. is relevant to this case. The essence of what the High Court decided rested on the subjective element connoted by the words “…of opinion…”, which in the learned judge’s view meant that once the Minister had formed such opinion, then the same could not be invalidated by reason of any defect in the process by which that decision had been reached. O’Hanlon J. did however enter a caveat to that rather unqualified statement by also stating that the Minister had to form his opinion bona fide.
70. Having pointed out that some of the most erroneous and insupportable opinions could be formed in good faith, Henchy J., at pp. 380-381 of the report, set out what in his view were the correct legal principles attaching to this type of statutory provision. He said:-
“I conceive the present state of evolution of administrative law in the courts on this topic to be that when a statute confers on a non-judicial person or body a decision making power affecting personal rights, conditional on that person or body reaching a prescribed opinion or conclusion based on a subjective assessment, a person who shows that a personal right of his has been breached or is liable to be breached by a decision purporting to be made in excess of that power has standing to seek and the High Court has jurisdiction to give a ruling as to whether the pre-condition for the valid exercise of the power has been complied with in a way that brings the decision within the express, or necessarily implied, range of the power conferred by the statute. It is to be presumed that, when it conferred the power, parliament intended the power to be exercised only in the manner that would be in conformity with the Constitution and within the limitations of the power as they are to be gathered from the statutory scheme or design. This means, amongst other things, not only that the power must be exercised in good faith but that the opinion or other subjective conclusion set out as a pre-condition for the valid exercise of the power must be reached by route that does not make the exercise unlawful such as by misrepresenting the law or by misapplying it through taking into consideration irrelevant matters of fact, or through ignoring relevant matters. Otherwise the exercise of the power will be held to be invalid for being ultra vires.”
In many of the subsequent cases which have followed and applied this decision, the principles as outlined have in shorthand been described as requiring that the opinion reached be bona fide held, factually sustainable, and not unreasonable.
71. What emerges from this decision, which has long since been accepted as representing a correct statement of the law when it is appropriately applied to any given situation, is that even when a person or body is entitled to reach a decision, which ex facie has some element of personal assessment to it, that decision must accord with the statutory parameters within which the underlying power is conferred. If therefore the decision involves a ‘misapprehension or a misapplication of necessary legal or factual considerations’, it will be regarded as having been reached in excess of jurisdiction. It will in those circumstances be considered as being outside the limitations set down. In effect, even allowing for the subjective element, it is a precondition to the valid exercise of such power that the decision does not breach the legislative framework within which the power is given. As this is an important factor in its own right, it might therefore be worthwhile, purely for the purposes of clarity, to add a fourth requirement to the requirements that the opinion be bona fide held, factually sustainable, and not unreasonable, namely that the opinion must otherwise be within vires.
72. Some years prior to Lynch v. Cooney this same point was made in the seminal case of East Donegal Cooperative Livestock Mart Ltd & Ors v. The Attorney General [1970] I.R. 317. Section 3 of the Livestock Marts Act 1967, which granted many powers to the Minister, prefaced their exercise by words such as, “at his discretion”, or “as he shall think fit”, or “if he so thinks fit”. The Supreme Court, through the judgment of Walsh J. (p. 344), declared that such powers may be exercised only “within the boundaries of the stated object of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will.” In truth, the only point of relevance to the instant case is the observation first made, namely that both the manner in which the decision is made, and the decision itself, must remain within the statutory confines as imposed by the Oireachtas.
73. However, in my view it is not necessary to be definitive about the precise test which should be applied, as in my opinion, whatever that test might be, the decision of the returning officer could not be said to fall within the range of statutory authority vested in him. I am satisfied that given the legislative scheme and having considered the evidential background, he could not as a matter of law have concluded that those of the disputed papers which were sequenced in number, “clearly indicated” a first preference for any candidate.
74. From the returning officer’s point of view the basic justification for his decision derives from a deduction that the voters in question moved seamlessly from their ballot paper in one election to their ballot paper in the other election, and in the latter simply continued where they had left off in the former. Therefore a second election on the same day is critical: in fact without such simultaneous elections a sequence vote such as in this case, would be regarded by Mr. McMahon as invalid, as apparently it would be by all other returning officers in the country. Interestingly, the Minister in his submissions takes a different view and says that the practice should be applied even where a single election only takes place. Whilst one does not have to deal with this situation, quite obviously if such were the circumstances the position of the returning officer would be even more invidious than it is in this case.
75. The underlying explanation offered in support of the respondent’s position may indeed have some merit to it. In fact, it may even possibly be correct in respect of a number or even a significant number of votes. However, that level of confidence, high as it might be, would not be sufficient to satisfy Article 80(1) of the Regulations: it would not support a conclusion that “each vote”, “clearly indicates” a first preference. For to do so the sequence, in order to leave no doubt, must obviously and distinctly so demonstrate.
76. To reach the conclusion which Mr. McMahon arrived at, one must disregard a number of real possibilities which offer a realistic alternative explanation for why voters may have adopted a sequence type of approach, which some did. Of course there is no possibility of checking the papers said to travel in tandem with those in question. In this case the papers for the European election were immediately separated from those in the local election and in fact were counted at different centres. Even disregarding that difficulty however, the secrecy of the ballot box makes it impossible to identify who cast what vote: therefore there is no possibility for any cross verification or even a cursory examination to take place. Thus, I think that it must be accepted that there is intrinsic to this rationale a high degree of surmise, speculation and conjecture.
77. A simple explanation for the type of voting encountered may be that a person might start with giving a fifth, a fourth and a third preference with the intention of returning and marking his higher preferences later. He may then have simply forgotten to do so, or may have been unable to decide between two rival candidates for a first preference, or may simply have abandoned the voting process altogether at that point. It may be that a voter is of the view that no candidate on the ballot paper is deserving of a higher value than a third preference and accordingly, has no intention of giving any candidate a preference with greater value. It may be, as was put during the course of the debate, that having marked five, four and three, the voter had simply run out of “venom” for the rest of the candidates whose names appeared on the ballot paper. Another possibility is that the vote is spoilt either intentionally or inadvertently. Furthermore, it could be that the first number of the sequence has not continued in consecutive order from the last number recorded in the other paper. One simply does not know. This difficulty arises with each one of such ballot papers: evidently it multiplies in complexity as the number grows.
78. In the context as outlined, how can it confidently be said that such a sequence, without any reference to a No. 1, clearly indicates a first preference? At best it must be ambiguous. It is and must be unclear. It may indicate such a preference, but as likely as not, it may not. Why else did Mr. McMahon clarify the numbering with his green biro? Therefore even if there could be some debate on what test should be applied, nonetheless it seems to me that the impugned decision of the returning officer in this case, is vitiated as being outside the range of options conferred by the power vested in him, under the Regulations.
79. Finally, whilst at first sight it seems desirable, if possible, to credit as part of the count every person who votes, nonetheless such an approach has within it an even more disturbing possibility than that of de-franchising a voter. It is that such a person is declared to have cast a preference for a candidate, when in fact he did not and when it may never have been his intention to do so. That result must be even more damaging to electoral integrity than what the returning officer was endeavouring to avoid.
80. For the above reasons, therefore, I would consider that the disputed decision involving the sequenced votes to be ultra vires the 1974 Act and the Regulations made thereunder. Consequently, the petitioner has established in my view one of the permitted grounds of challenge, namely that the election was not completed or conducted in accordance with law. (s. 5(1))a) of the 1974 Act)
The Submission of Mr. O’Gorman:
81. Mr. O’Gorman was an independent candidate in the election in question, but unfortunately for him was eliminated on the ninth count. At all relevant times, in particular at the initial adjudication process, his interests were being looked after by his aunt, Ms. Marie O’Gorman, who had previous knowledge of elections and who had in fact on many occasions attended, throughout the full count.
82. In his submissions he supports the position of Mr. Kiely on the issue which previously I have dealt with. In addition, however, he wishes this Court to consider whether each candidate must be notified before the returning officer adjudicates on the validity of any doubtful vote: this issue was originally raised by the petitioner but was not pursued by him on this appeal. That matter was dealt with as Issue No. 2 by the learned Circuit Court judge. (para. 34 supra). As Mr. O’Gorman is but a notice party, and as he was in any event represented at all relevant stages during the adjudication process, I would not entertain consideration of this ground of complaint.
Effect on the Result of the Election:
83. As above stated (para. 15 supra), the petitioner, even if he establishes that some invalidating error took place in the conduct of the election, must also satisfy the second requirement of s. 5 before any consideration can be given to the exercise by the court of its powers under s. 8 of the 1974 Act. This latter observation is subject to the possibility of using the provisions of s. 8 as part of establishing the s. 5 requirement as Hamilton P. did in the case of Bell. The relevant part of s. 5 reads:-
“5(1) Subject to section 82(6) of the 1963 Act a local election may be questioned on the grounds of…which, if established, are likely to have affected the result of the election…” (emphasis added)
Thus, Mr. Kiely must also meet this statutory condition.
84. The onus of proof in this matter remains on the petitioner throughout. No submission like that made in Jordan v. Minister for Children [2015] IESC 33 (“Jordan”), to the effect that the burden shifts at a particular point, has been made in this case. The standard of proof is at the normal civil standard (para. 43 supra).
85. The relevant phrase contained in the aforesaid section has not been defined or further described in the Act or in the Regulations. Its purpose on the negative side is to prevent results being impugned, and on the positive side to uphold this treasured value of democracy, where the error of law could have no causative effect on the outcome. As stated by Henchy J. in Thomas Dillon-Leetch v. Sean Calleary & Ors, (Supreme Court, 31st July, 1974) (“Thomas Dillon-Leetch”) an error, even if established, which is “electorally ineffective” will not be sufficient to set aside the correctly exercised constitutional right of the rest of the electorate to elect their representative to the body in question. This issue, unlike the first requirement of s. 5 of the 1974 Act (para. 15 supra), is a question of fact: see Palles C.B. in In Re Pembroke Election Petition [1908] 2 I.R. 436 at 449.
86. The case of Jordan featured on this aspect of the instant appeal where the comparable requirement to that set out in s. 5(1) of the 1974 Act (para. 83 supra), is set out inter alia, in s. 42(3)(b) of the Referendum Act 1994 (“the 1994 Act”): this obliges a petitioner to establish that the irregularity complained of “…is such as to affect materially the result of the Referendum as a whole” (emphasis added).
87. Before outlining the test or the interpretive approach to that phrase which the court in Jordan agreed upon, could I refer to a number of points made by O’Donnell J. in his judgment, with which I entirely agree. These are, firstly, that there is a difference between (i) proving that the result must or would have been different if the irregularity had not taken place on the one hand and (ii) proving that there is a real likelihood or a real risk that that is so, on the other hand; secondly, that the Constitution does not demand that the threshold of ‘material effect’ on the Referendum result, should be interpreted as meaning “…must necessarily have altered the result…”, and thirdly, that there is a difference between what must be proved and the standard to which that must be established.
88. Having discussed the approaches suggested by (i), Henchy J. in Thomas Dillon-Leetch (“…that the result…has been or could have been affected…”), (ii) Palles C.B. in In Re Pembroke Election [1908] 2 I.R. 436, both election cases, (“…that the irregularity had, or might have, affected the result…”), and (iii) the Canadian Supreme Court’s decision in Opitz v. Wrzesnewsky J [2012] 3 S.C.R. 76 (The Magic Numbers Test), O’Donnell J., at para. 85 of his judgment continued:-
“Accordingly, I would hold that ‘material affect on the outcome of a Referendum’ involves establishing that it is reasonably possible that the irregularity or interference identified affected the result. Because of the inherent flexibility of this test, it may be useful to add that the object of this test is to identify the point at which it can be said that a reasonable person would be in doubt about and no longer trust the provisional outcome of the election or Referendum.”
89. The word ‘affect’ is common to both provisions. In its ordinary sense it means to produce an effect on, to alter or to change or to influence. That word however is conditioned in the 1994 Act by the word ‘materially’, which is not to be found in s. 5 of the 1974 Act. Evidently that qualification has a meaning, which meaning, according to Denham C.J. in Jordan (paras. 51-52), corresponds with the word “substantial”. It therefore seems to me that one cannot simply lift the Jordan test and transpose it into s. 5 of the 1974 Act. To do so is to equate both statutory requirements which self evidently are clearly distinguishable.
90. The nature of the exercise by the people of their right to vote in a Referendum is different to that of a local election. In the former the entire people of the country are consulted on an issue(s) of such national importance that the government has seen fit to call upon them, to act as the ultimate arbiters on some vital question of national policy (Article 6.1 of the Constitution). On the other hand a local election, though of course also a significant expression of democratic value, is quite different: it decides no issues: it is geographically confined and it elects people to a local body with quite restricted and limited powers. Accordingly, although obviously a matter for the legislature, one could readily see the justification for having different review standards as between that type of election and a nationwide Referendum. Consequently, I do not think that a direct application of the test above outlined, would be appropriate for the purposes of s. 5 of the 1974 Act.
91. That is not to say however that Jordan can or ought to be ignored. On the contrary, there is an invaluable and high level discussion in paras. 70-84 by O’Donnell J. of this general issue, culminating in the formulisation of the test adopted by all other members of the court, which I have set out at para. 88 of this judgment.
92. Very little guidance on this point can be obtained elsewhere, in particular from a consideration of other statutory provisions where the phraseology is somewhat different than that contained in s. 5 of the 1974 Act, or from a consideration of the case law on such provisions. However, it is instructive to recall what O’Donnell J., in his judgment in Jordan, had to say on the applicable provision dealing with referenda (para. 88 supra).
93. Against the backdrop of the differences between s. 5 of the 1974 Act and s. 42(3) of the 1994 Act, it is noteworthy that the relevant passages of his judgment convey that in respect of a provision more demanding than that at issue in this case, where it was “reasonably possible” that the irregularity could affect the result, that would be a sufficient compliance with the 1994 requirement. Or as it was also put, the same conclusion could likewise be reached where “a reasonable person would be in doubt” about the result or that such a person would no longer trust the result. In such circumstances judicial intervention would be justified.
94. In this case Mr. Kiely must prove that the error of law above declared is likely to have affected the result of the election in question. This requirement under s. 5 of the 1974 Act, has a number of aspects to it: one relates to impact, a second relates to outcome and a third describes the level to which both must be established. By “impact” I mean “affect” and by “outcome” I mean “election result”. This is the statutory obligation which must be satisfied on the balance of probabilities. There is however no obligation to prove more. Certainly one does not have to establish that the candidates, as nominated in the Declaration of the returning officer, would be different but for the error. Nor is it necessary to show that a petitioner would himself have obtained a seat. In addition, the verb “affect” is not qualified in any way, unlike that in Jordan: therefore the same level of impact is not required. However, a “possible” effect only would not be sufficient and neither would some insignificant or immaterial effect meet the threshold. Rather in my view, the petitioner must identify consequences, referable to the result, which are not electorally inconsequential: if established, the same will be a sufficient compliance with this aspect of the section.
95. Could I add before concluding on the point that despite the evaluation which I have attempted, I am not sure if, in the final analysis, one can better the actual wording of the section itself, or that it would be wise to do so. Accordingly, I am satisfied to test the evidence in order to see whether it provides a sufficient foundation upon which one can say that the consequences of the error, as found in this judgment, is “likely” to have affected the election result.
The Evidence:
96. It has not been possible to establish precisely what number of the 57 disputed votes, which the returning officer marked as valid, involved the type of sequencing formula as is in issue in this case. No separate record was made of such votes. Whilst it would have been possible for the petitioner to obtain an order under Article 93 of the Regulations to inspect those votes, he did not do so. He has been heavily criticised by the respondent County Council for his failure in this regard: that cannot deprive him of relief if on the available evidence he can otherwise establish the point.
97. Since my fellow colleagues in their respective judgments have dealt with this issue at some length, I should like to say something further on the point. Indeed, Charleton J. has dismissed the appeal because of what he perceives to be a deficit in the evidential corpus which he points out may not necessarily have occurred if inspection of the doubtful votes had taken place.
98. I would agree that greater certainty would have resulted if the statutory provisions had been utilised. As the disputed papers were admitted, they inevitably formed part of the “counted ballot papers” which were retained after the election and which were within Article 93 of the Regulations for inspection purposes. To identify the number of sequences votes which existed, one would have had to inspect the total valid poll. If this had been done, a precise figure for such papers could have been ascertained and that evidence placed before the court. The greater the number of such votes, the greater the likelihood of those affecting the election result. However, I do not think that one can go much further than this.
99. I suppose it would have been possible for the petitioner to engage some electoral who might have been in a position, having discarded the sequenced votes, to redo the entire count, including the distribution of the votes of eliminated candidates and the surpluses of those who had reached the quota. And further, by this means, to suggest a corrected outcome, if that be the case, of the election result. Presumably in such a scenario the Council would stand over the decisions made and conclusions reached, by the deputy returning officer.
100. But if the legal challenge was to be decided in that way, I doubt strongly if such an approach would have been in compliance with s. 8 of the 1974 Act. This for the simple reason that the “counting afresh” would not have taken place under “the direction of the court” as required by subs (2) of that section. This in my view is a vital safeguard and a key aspect of the legislation in question. This is what Hamilton P. did in Bell, even if in that case the entire purpose was to see whether or not the disputed votes would have made a difference to the result. Therefore the exercise was part of establishing the requirements of s. 5(1) of the 1974 Act, rather than as part of the follow-on phase, as set out under s. 8 of the Act (para. 83 supra). In any event, none of this in fact happened in the instant case. Accordingly, one is left with the evidence as it is, whatever that might be. It is for Mr. Kiely to decide on his proofs: if he falls short he must suffer the consequences.
101. Finally, could I say that s. 8 of the 1974 Act is in my view, designed to regulate the “counting afresh” of the votes after an irregularity and “likely” impact has been established, or perhaps as part of establishing the latter requirement. Subsection (4) empowers the Court to set aside or reverse a decision of the returning officer as part of this process. That evidently has not as yet taken place in this case. The power of the Court which hears the election petition and that of any appellate court to find and remedy any established irregularity is contained in section 5 of the Act. Therefore in my view I do not think that section 8(4) has any application outside of that and, in particular given the way in which this petition was proceeded with, was not relevant at the petition hearing and likewise is not relevant to this Court on appeal.
102. Two witnesses in particular are relevant to the evidential issue, namely the deputy returning officer and Ms. Marie O’Gorman. During the course of his direct evidence Mr. McMahon was asked and stated the following:-
“Q. During the course of the adjudication process did people raise issues with you?
A. Yes
Q. And in relation to what? What kind of issues were raised?
A. Well, the issue about the two, three, four, five was raised
Q. By who do you remember?
A. - as an issue. I can’t recall?
Q. You can’t recall?
A. There would have been backwards and forwards. Some people would have been giving one type of view on it, another person might be giving a contrary view on it.
Q. And I take it on each ballot some people would want it admitted and some people might want it not admitted, depending what was on it?
A. Yes. And I think as the process proceeded then I’d say there was less intervention, you know, once people saw what was being accepted, what wasn’t accepted, and that provided -
Q. A pattern develops.
A. yes and once I was consistent in my rulings.”
103. Under cross examination he continued:
“Q. Okay. But as far as I understand it from your evidence some of those that went in, some of those that went in were definitely three, four, five?
A. Yes
Q. or five, six, seven?
A. Yes
Q. Or possibly eight, nine, ten?
A. Well, I didn’t -without seeing them again.”
104. Ms. O’Gorman, who was present during the adjudication of these questionable ballots, gave evidence as follows:-
“A. …Then there were a few which apparently because there was a European election as well there were some ballot papers that had three, four and five on them and no one and two and -
Q. Were they allowed or disallowed?
A. They were allowed because it was felt that there was a European election and the person went in and voted one and two in the European and they continued the preference three, four and five in the local and that was the -
Q. Who felt?
A. Well, the returning officer, Michael McMahon, was saying this, you know, that it was - you know the trend was there. It happened before obviously.
Q. Were there many of them?
A. There were a few.”
105. In dealing with this aspect of the case, (Issue No. 4), the learned trial judge was heavily influenced by the evidence of Mr. Enright, who was an election agent on behalf of Mr. Kennelly and who was present during the adjudicative part of the count. That evidence in effect stated that only a handful of votes were subject to any form of objection, and that only one disputed vote aroused any substantive discussion. On that basis, the judge reached the conclusion which he did.
106. It is difficult to see how the evidence of Mr. Enright could have had such an impact on the evidence of the other two witnesses as outlined. Whether there was any, or any substantive, discussion on the sequenced votes, could not be determinative of the likely effect which such votes could have had on the election result. There may have been several reasons for the absence of vocalised challenges: however, once the issue was raised, as clearly it was, then whether further debate or discussion took place could not be decisive. What is more relevant in the context of a causative effect is the number of such votes. In that regard the evidence, although obviously imprecise, nonetheless clearly shows that there were at least some such votes, as demonstrated, inter alia, by Mr. McMahon’s reference to a sequence starting 3, 4 and 5 and to a sequence starting at 5, 6 and 7. This is also supported by Ms. O’Gorman who refers to the number of such votes as being, in her view, “a few”. The question thus is whether on this evidence the second requirement of s. 5 of the 1974 Act has been satisfied.
107. It may well be that if the circumstances were otherwise, the petition should rightly be dismissed on this fragile evidential basis. But given the margin by which Mr. Kiely lost the seat to both the fourth and fifth candidates who were elected, I have come to the conclusion that there is sufficient evidence for concluding that if such votes were admitted, the same could have had an effect on the result. Given the type of proportional representation applying in this country, even a very small number of votes could have an accumulative effect on earlier transfers or eliminations, which, as the counting proceeds, could have an impact on the outcome. If the margins of success or failure were greater the available evidence may not at all be considered sufficient. But they are as they are, and in these particular circumstances, I am satisfied that Mr. Kiely has discharged the onus of establishing the second requirement of s. 5 of the Act.
The Next Step: Section 8:
108. In these circumstances I believe that court intervention is justified. Its powers in that regard, once s. 5 of the 1974 Act has been satisfied, are set out in s. 8 of the 1974 Act. In that provision three options are given, not as a matter of indifferent choice but as a matter of deliberate decision. For obvious reasons, that given under subs (1)(c) can be discounted. So it is either s. 8(1)(a) or s. 8(1)(b), both of which read as follows:-
“The court may for the purpose of the trial of a petition, if it thinks fit, order -
(a) that all the votes cast at an election shall be counted afresh, or
(b) that all the votes so cast in a particular local electoral area shall be so counted.” (emphasis added)
I am entirely convinced that there is no necessity to embark on the former exercise and that the more restricted re-examination as provided for under s. 8(1)(b) is what is required.
109. By an Order which is cited as “The County of Kerry Local Electoral Areas and Municipal District Order 2014 (S.I. 51/2014)”, it was provided that the County of Kerry shall be divided into the local electoral areas which are named in the first column of the schedule to this Order. The names of the four local areas given are Killarney, Listowel, South and West Kerry and Tralee. The number of members of Kerry County Council to be elected for each such local electoral area is then set out in the third column of the schedule which, referable to Listowel, is seven. Consequently, these provisions apply for the purposes of the 2014 local elections. Incidentally, there was in substance a similar Statutory Instrument, with obvious adaptations, made in respect of each county, city and, in the case of Limerick and Waterford, city and county for the 2014 Local Government elections throughout the country, save that I have been unable to verify one made for Cork City. In any event, it is quite clear from this Order that whilst the election covers the entire County of Kerry, nonetheless for that purpose there is a specific and determinable division within the County into the areas which I have mentioned. In essence, each area in itself must be considered as a local electoral area. Candidates run not for the County of Kerry but for the divisional districts, as provided for in the Order. For example, Mr. Kiely ran in Listowel. He did not do so in South and West Kerry or in any of the other two areas as delineated. Again, those who were entitled to vote in the Listowel area could not vote for candidates in any other area. Consequently, I am satisfied that each local electoral area must be considered as self contained for local electoral purposes.
110. It seems therefore to me that unless no distinction was envisaged between subparas (1)(a) and (1)(b) of s. 8 of the 1974 Act, it must follow that the appropriate Order has to be confined to the electoral area, the subject matter of this petition. Whilst it may be the case that the sequenced vote pattern in question may have occurred in any or all of the other three areas within the County of Kerry, it is also possible that this may not have happened. In any event and critically, there has been no challenge to the Declaration made by the returning officer in respect of these areas and it is now far too late for such to issue (s. 19 of the 1974 Act). Furthermore, whilst one may speculate as to what might have occurred in these areas, there is no evidence whatsoever that the irregularity so found by this Court in respect of the Listowel area has also occurred elsewhere. For these reasons, unless as I have said there is no distinction between subparas (a) and (b), I would confine any Order of this Court reflecting its judgment to that contained in subpara (b).
Distinction between the Subparas?
111. It is a rule at the level of first principle that words should be given their ordinary meaning and that the Oireachtas does not intend to enact surplus or duplication. Therefore, at a prima facie level, one must search for a meaningful distinction between subparas (a) and (b) of s. 8(1) of the 1974 Act. In my view the answer is readily apparent. The first permits of the recounting of the votes for an entire county, whereas the second is restricted to a recount for a particular electoral area. The former might be engaged if the complaint upheld by the court was pitched at that level, or else if the evidence adduced carried through from one local electoral area into all others within the county boundary. For example, there might be a generalised complaint about the particular manner in which the returning officer and any deputy under him conducted the election. It is not difficult to envisage an issue of irregularity which would, at the level of principle, have that level of exposure. In those circumstances an Order under s. 8(1)(a) would be appropriate. However, in this case the complaint is confined and the evidence relates solely to the papers cast for the Listowel electoral area. Therefore, I cannot see how any Order of this Court should go further than that area. Consequently, I will propose that an order should be made under s. 8(1)(b) of the Act.
The Phrase “…Counted Afresh”:
112. Whichever type of Order may be made all the votes cast must, according to s. 8 of the Act, be “counted afresh.” As pointed out, again by Henchy J. in Thomas Dillon-Leetch, this requirement is in contrast to where a recount is called for, in which only the papers dealt with during that count are re-examined, or indeed even when a full recount is called for, both of course occurring during the course of the election process itself. In either situation the re-examination is confined to “all parcels of ballot papers” (Article 87(1) and (3) of the Regulations). That however is not what s. 8 of the 1974 Act provides for. Whilst I appreciate that this will affect the randomisation of the papers as arranged from time to time during the original process, nonetheless this is an inevitable consequence of an entire recount which is legislatively provided for. Such a recount will obviously involve all postal and special voter boxes as well. Accordingly, such an order should be made in these proceedings and the matter remitted back to the Circuit Court so that the recount directed can be conducted under its authority and control.
113. Once this process has been completed under the direction of the Circuit Court, that court has jurisdiction to make a final order under and pursuant to the provisions of s. 14 of the 1974 Act, which includes a declaration as to the correct result if the outcome so permits.
114. For the reasons above outlined, I would allow the appeal to the extent and for the purposes as stated.
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