Election Q&A: Why was there a row over who gets last seat in Dublin and the South?

The count in the Dublin European constituency was suspended last night due to a row over the distribution of votes. We explain what happened and why it is important.

Q: What issue has emerged in the European election count?

A: In the Dublin and South constituencies the last MEP elected will not take up their seats immediately - due to the Brexit impasse. In Dublin, this means the battle for the third of the four seats between Clare Daly (Independents For Change) and Barry Andrews (Fianna Fáil) is effectively a race to see who gets to go to Europe immediately.

In the South, three candidates are slugging it out: Liadh Ní Riada (Sinn Féin), Grace O'Sullivan (Green Party) and Deirdre Clune (Fine Gael). One will lose out; another will be on the subs bench.

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Q: Why was there a row in Dublin last night?

A: It centred on how many counts are required to need to determine the ranking of the final seats. In Dublin, three candidates were left after Gary Gannon was eliminated after count 14. It was unlikely his transfers would take Sinn Féin's Lynn Boylan above Daly and Andrews.

In a normal election there would be a declaration because there were no transfers to push Boylan past either Andrews and Daly.

However, ahead of this election, the rules were changed and so another count must take place to distribute Boylan’s votes to determine who finishes third and fourth.

Q: What does the new law say?

A: Given the complicated nature of our proportional representation, Single Transferable Vote (PRSTV) system, it was always going to be tricky to determine the order of the final seats.

In a normal elections what often happens is the last two candidates in a four-, or five-, seat constituency get elected without reaching the quota. That is determined by Rule 88 of the European Parliament Elections Act 1997.

When it became obvious Brexit would not happen by March 29th, the Government faced a quandary. Ireland had two extra seats because the UK was leaving but these seats would be in escrow.

To cater for this legally, the Government introduced emergency legislation, the European Parliament Elections 2019 Act in March

This means Rule 88 does not apply for Dublin and South. It allows the counts to continue so a ranking can be achieved.

Q: What is the upshot?

A: It means Boylan's votes will be distributed and that is expected to favour Daly. In South, it will depend on who finishes sixth and who their votes favour.

Q: Why is there so much confusion?

A: Contradictory statements from Government figures did not help. In April, Taoiseach Leo Varadkar mistakenly said two separate and parallel counts were need: one as if Brexit had happened, and another if Brexit was reversed. That statement was withdrawn.

As recently as Tuesday morning Minister of State with responsibility for electoral law John Paul Phelan made a big error. He said Boylan's votes would not need to be distributed, contradicting his own Dáil speech from March. He later corrected himself.

Q: Is it all clear now?

A: Yes. The returning officers will continue the counts. However, Fianna Fáil has a squad of senior lawyers in the RDS ready to make a challenge. It was always going to be complicated.