Across the 3 European constituencies, 55,996 voters spoiled their ballot papers, meaning that their votes were not counted for any candidate, and were instead cast aside.
Some of these ballot papers will have been deliberately spoiled as a protest – for example somebody writing “none of the above” on their ballot paper will clearly have been deciding that amongst the 27 candidates in Midlands North West, not even one of them properly represented that person’s views. Another good portion of spoiled votes are people who just left the ballot paper blank – often these are people who came out to vote mainly in the local elections, maybe as a favour to one local candidate, and had no interest at all in the EU elections.
However, a significant number of ballot papers – observers at the counts put the number in the tens of thousands – are so called “Kiely Ballots”, named after the former Fianna Fáil Senator Dan Kiely, of County Kerry.
Ten years ago, in the local and EU elections of 2014, Kiely missed out on being elected to Kerry County Council for the Listowel local electoral area by a margin of two votes. Not being one to take this lying down, Kiely went to court arguing that the returning officer had made a big mistake in the classification of spoiled ballots.
Because there were two elections on the same day, some voters had treated their two ballot papers as a single list and ranked their candidates in order of preference. They started on the EU ballot – going 1, 2, and 3 – and then moved over to the local election ballot paper, starting their votes with “4”, and continuing 5, 6, 7 and so on.
In Kiely’s election, the returning officer, in accordance with established precedent at the time, had simply treated these ballot papers starting with a 3 or a 4 as if the vote was a number one – the highest preference expressed on the ballot paper.
This, said Kiely, was wrong.
In his opinion in the Supreme Court, then Chief Justice Frank Clarke sided with Kiely: You cannot count a vote that starts with a “3”, he ruled, because it is not a clear first preference. While it might reasonably be inferred that such a voter intended in most cases to cast a vote for the candidate with the highest preference, Clarke ruled that you could not be sure in all cases. For example, he argued that some people will start their votes from the bottom up – starting with the lowest candidate and working their way up – and may simply have forgotten to fill it out entirely. Or that some voters may have been making a point that nobody was worth a first preference.
The safest thing, Clarke ruled, was to toss all such votes out. Kiely won his election after all.
That is how it has come to pass that in these elections, all such ballots are tossed.
But did the court get it right? Absolutely not, in my view, and in the view of many candidates.
First, common sense would indicate that the vast majority of such votes are honest mistakes from voters who simply haven’t yet figured out how to vote properly. As somebody who has answered a lot of reader queries in recent months about voting, it is very clear that confusion about how to vote in Irish elections is very widespread indeed. The democratic thing to do, in the case of a spoiled vote, is to give the voter the benefit of the doubt – if a preference can reasonably be determined, the vote should count.
In the case of a ballot starting with a 3 and continuing to a 4, then a preference can clearly be determined. Natural justice should presume that the voter was trying to cast a vote, not that the voter was trying to spoil their vote. Unfortunately, after the Kiely case, it is this latter presumption that reigns.
Second, and to be blunt, this rule tends to work against voters of lower education and social class. As one observer at the count pointed out to me this weekend, you don’t see too many “Kiely ballots” for Fine Gael or Fianna Fáil: The parties disenfranchised the most tend to be those who draw much of their support from poorer and less educated voters – the hard left, Sinn Fein, and, in this election, the populist right.
Third, if a voter actually wanted to spoil their ballot, there are more obvious ways of going about it. Some people clearly spoil their votes in ways that are accidental, but irrevocable – for example people voting X and X beside their two favourite candidates instead of 1 and 2. But deliberate spoiled votes are easy to spot: They will be votes where someone has written a message, or written in the name of Dustin the Turkey and put a 1 beside his name, or filled out every box with a 1 and written “as promised” at the bottom.
Spoiling a ballot can be an honest mistake or a democratic choice. But where there is a case of an honest mistake and those counting the votes can see that it was likely an honest mistake, common sense should rule.
Unfortunately, it does not. And that’s why something like 25,000 people – if observers at counts are to be believed – have had their votes thrown out this weekend.
If you were one of those voters, try not to make that same mistake again.