A SUPREME COURT ruling on how ballot papers without a first preference should be counted may be behind the record number of spoiled European election votes this year.

More than 73,000 invalid votes were counted across Ireland’s three constituencies this year, 4.2% of the total ballot and the highest number since European elections began in 1979.

In Dublin alone, over 15,000 invalid votes were counted in this year’s election, more than double the number counted in the capital in 2014.

But while some see spoiled votes as a form of protest against the options on a constituency’s ballot paper, the reason for the jump is more technical.

Eoin O’Malley, associate professor in political science at DCU’s School of Law and Government, points to the so-called ‘Kiely ruling’ from 2014 as the probable reason for the increase.

The case, brought by former senator and Kerry County Council hopeful Dan Kiely, centred on whether ballot papers with a numerical sequence of preferences – but which don’t start with ’1′ – are valid.

Kiely took the case after losing out on a seat for Kerry County Council in the 2014 local elections, when – like they did this year – voters cast their preferences on two separate ballot papers: one for the European Parliament and one for their local authority.

In some cases, voters put their first and second preferences on one paper, and followed with their third, fourth and fifth preferences on the other paper.

At the time, election guidelines stated that both ballot papers could be accepted as valid, but the Supreme Court later found in favour of Kiely (who then missed out on a seat anyway) and ruled that papers which did not start with a ’1′ were invalid.

O’Malley told TheJournal.ie that the judgement “seemed a bit silly at the time” and suggested that it removed discretion from returning officers in how votes were counted.

“One of the problems with ballot papers is that they’re difficult to read,” he said.

“If you read the ballot paper, it does say to vote in the number of preference, but many people might overlook that when they’re voting.”

He also suggested that an amendment could be made to the Electoral Act to state that voters should show a ‘clear preference’, which would be vague enough to allow returning officers to have more discretion when counting votes.

Others, such as Theresa Reidy, a political scientist at University College Cork, believe that a voter education programme ahead of elections would help solve the problem.

“We just assume that people know how to vote in preferential order, but if they don’t read a newspaper or look online, they’re not going to know how to vote,” she says.

“The idea that something you did on a Tuesday in a CSPE class when you were 15 will stay with you for the rest of your life is a bit of a cavalier attitude from our political elite.”

Reidy points to the work of the Referendum Commission, which advises the public through advertisements in the run-up to referendums in Ireland, as an example of how this could work.

She adds that similar programmes already exist in other countries, pointing to her experience in Finland a number of weeks ago, when she heard ads on radio and saw them on television and social media in advance of the European elections.

“This could be easily done, an ad campaign could be short and to the point,” Reidy said. “If we really value our democracy we should do this.”