What is the legal dispute that has halted the Dublin European Election count?

by Michael Nugent on May 28, 2019

The Dublin European Election count was adjourned last night after a dispute about how the third and fourth seats should be filled.

I’ve checked to see what the election law says about this, and it seems that an additional set of transfers, beyond the normal range of transfers, is needed.

The current situation

There are four seats in Dublin. Two are filled (Ciaran Cuffe of the Green Party and Frances Fitzgerald of Fine Gael) and two are still vacant with three candidates left (Barry Andrews of Fianna Fail, Clare Daly of Independents For Change, and Lynn Boylan of Sinn fein.)

The sixth placed candidate (Gary Gannon of the Social Democrats) has just been eliminated, and his transfers are about to be distributed between Barry Andrews, Clare Daly, and Lynn Boylan.

Normally what would happen, after Gary Gannon’s votes are distributed, is that the counting would then stop. The candidates in third and fourth place (currently Barry Andrews and Clare Daly) would be deemed elected, and the candidate in fifth place (currently Lynn Boylan) would be deemed not elected.

What is different this time?

Usually the above procedure would be fair to everyone, because there is no practical difference between being elected in third place or fourth place in a constituency.

But this time, in Dublin and Ireland South, there is a difference between being elected in third place and fourth place.

The person elected in third place goes straight into the European Parliament, while the person in fourth place has to wait until, or if, the United Kingdom leaves the EU.

So the argument is that, to accurately reflect the wishes of the voters, the votes of the fifth place candidate should be distributed between the remaining two.

What does the electoral law say?

The rules for filling of last vacancies are covered in Section 124 of the Electoral Act 1992 as reflected in Rule 88 in Schedule 2 of the European Parliament Elections Act, 1997. These rules were amended by Section 31 of the Electoral Amendment Act, 2001 which added a new paragraph (1A) covering what happens when there is one more candidate than available seats.

This is what those rules were before this election.

Filling of last vacancies

(1) When the number of continuing candidates is equal to the number of vacancies remaining unfilled, the continuing candidates shall thereupon be deemed to be elected.

(1A) When the number of continuing candidates exceeds by one the number of vacancies remaining unfilled and the total of the votes credited to the lowest continuing candidate together with the surplus or surpluses not transferred is less than the number of votes credited to the next highest continuing candidate, the continuing candidates, with the exception of the lowest such candidate, shall thereupon be deemed to be elected.

(2) When only one vacancy remains unfilled, and the votes of some one continuing candidate exceed the total of all the votes of the other continuing candidates together with any surplus not transferred, that candidate shall thereupon be deemed to be elected.

(3) When the last vacancies can be filled under this rule no further transfer of votes shall be made unless any of the continuing candidates has not been credited with a number of votes exceeding one quarter of the quota and it is necessary for the purposes of rule 9(1)(e) to make such transfer in order to establish whether such a number of votes could be credited to that candidate.

The relevant change in the Act for this election

The Act under which this election is taking place is the European Parliament Elections (Amendment) Act 2019

Section 6(h)(i) of this Act makes paragraph (1) above subject to a new paragraph (4).

So paragraph (1) now reads:

(1) Subject to paragraph 4, when the number of continuing candidates is equal to the number of vacancies remaining unfilled, the continuing candidates shall thereupon be deemed to be elected.

Section 6(h)(iii) then adds the new paragraph (4), which begins:

(4) For the purpose of the European elections held in the year 2019—

(a) paragraph (1A) shall not apply in the constituencies of Dublin and South as specified in the Third Schedule…

This is the paragraph (1A) that, according to the new paragraph (4), does not apply for Dublin and Ireland South for this election:

(1A) When the number of continuing candidates exceeds by one the number of vacancies remaining unfilled and the total of the votes credited to the lowest continuing candidate together with the surplus or surpluses not transferred is less than the number of votes credited to the next highest continuing candidate, the continuing candidates, with the exception of the lowest such candidate, shall thereupon be deemed to be elected.

These changes suggest that an additional set of transfers, beyond the normal range of transfers, is required for the two constituencies with the limbo seats in this particular election.

That would be consistent with the result reflecting the wishes of the voters, by ensuring that the three candidates that get the immediate MEP seats are the three that have most support from the voters.

The complete relevant amendment in the current Act

This is the complete relevant Amendment in the current Act, to the rules for filling the last vacancy, in Schedule 2 of the Principal Act:

The Second Schedule to the Principal Act is amended—

(h) in rule 88—

(i) in paragraph (1), by the substitution of “Subject to paragraph (4), when” for “When”,

(ii) in paragraph (1A), by the substitution of “Subject to paragraph (4), when” for “When”, and

(iii) by the insertion of the following paragraphs after paragraph (3):

“(4) For the purpose of the European elections held in the year 2019—

(a) paragraph (1A) shall not apply in the constituencies of Dublin and South as specified in the Third Schedule, and

(b) subject to paragraph (5), when all vacancies have been filled in the constituencies of Dublin and South as specified in the Third Schedule, the order in which candidates are deemed to be elected in each such constituency shall be—

(i) where a candidate is deemed to be elected at the end of a count, that candidate shall be deemed to be elected before a candidate deemed to be elected at a subsequent count,

(ii) where two or more candidates are deemed to be elected at the end of a count, the candidate with the greater number of votes credited at the end of that count shall be deemed to be elected before a candidate with a lower number of votes credited at the end of that count.

(5) If, at the end of a count, two or more candidates in the constituencies of Dublin and South as specified in the Third Schedule have each the same number of votes—

(a) regard shall be had to the number of original votes credited to each candidate, and the candidate with a greater number of original votes shall be deemed to be elected before a candidate with a lower number of original votes credited,

(b) where the numbers of the original votes are equal, regard shall be had to the total numbers of votes credited to each candidate at the first count at which they had an unequal number of votes and the candidate with a greater number of votes credited at that count shall be deemed to be elected before a candidate with a lower number of votes credited at that count, or

(c) where the numbers of votes credited to each candidate is equal at all counts, the returning officer shall determine by lot the order in which the candidates are deemed to be elected.

(6) In this rule and without prejudice to rule 82, “determine by lot” means determine in accordance with the following directions, namely, the names of each candidate concerned having been written on similar slips of paper, and the slips having been folded so as to prevent identification and mixed and drawn at random, each candidate shall be deemed to be elected in the order in which his or her name is drawn.”

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