A FORMER Labour Party councillor who is seeking to have an election declared void because of voting errors does not need to establish that he would have won a seat to succeed, a court heard yesterday.
Counsel for Willie Tiernan, who lost his seat on Boyle Town Council in Co Roscommon in June 2009, said he had to establish that the mistake affected the result of the election but not that his client would have taken a seat. This was agreed by all parties in the case.
The third day of the hearing at Longford Circuit Court heard yesterday that no election petition in living memory had succeeded. Mr Tiernan is seeking to have the 2009 Boyle Town Council election declared void and a new election held on the basis that 18 people voted who were not entitled to do so.
He was just one vote behind Fianna Fáil candidate Doreen Caldbeck when he was eliminated on the sixth count.
Richard Humphreys SC, counsel for Mr Tiernan, said the test in this case was whether an error “did affect or could have affected” the outcome. Outlining the provisions of the 1872 Ballot Act and the 1923 Electoral Act, he said the test had been “softened” under the 1974 Local Elections (Petitions and Disqualifications) Act which referred to whether an error was “likely” to have affected a result.
Counsel submitted that because of the secrecy of the ballot it was “just not possible” to show that an error did affect an election outcome. Colm Mac Eochaidh SC for the returning officer Eileen Callaghan said the test was whether the election was “likely” to be affected by the error.
Noel Whelan SC for the DPP said he agreed that the issue was not whether Mr Tiernan would have been elected. Judgment in the case will be given in October.
