If 1370 of the Senate votes cast in WA are lost, should the entire state have to vote again?
The Australian Electoral Commission (AEC) says yes.
Lawyers for the AEC appeared in the High Court - sitting as the Court of Disputed Returns - on Wednesday, arguing that the WA Senate outcome should be declared void and the election held again.
They said because the declared result came about from a recount that excluded 1370 ballots - which the AEC itself lost - those people had been prevented from voting.
"The 1370 were prevented from voting because their votes were not counted or capable of being counted in the count that mattered," Andrew Bell, for the AEC, said.
The AEC had declared the candidates elected to the fifth and sixth senate positions were Australian Sports Party candidate Wayne Dropulich and Greens Senator Scott Ludlam.
But this was after a recount that did not include the missing ballots.
The first count delivered the final two WA Senate places to Zhenya Wang of the Palmer United Party (PUP) and Labor's Louise Pratt.
After the AEC filed a petition calling for the result to be declared void, the Palmer United Party and the Labor party launched separate actions to have the first vote declared the official result.
Senator Ludlam also lodged a petition with the High Court but it was dismissed.
Solicitor General Justin Gleeson, for the AEC, said that while some submissions to the court said a vote had been cast "as soon as the person has lodged a piece of paper", the scrutiny of the vote was a necessary part of the vote.
He also said the "incredible narrowness" of the margin was a factor for the court to consider.
The margin swung from 14 votes in favour of Shooters and Fishers Party's Murray Bow to 12 more votes for Australian Christian Party's Jamie Van Burgel after the re-count.
Neither of these candidates stood to be elected but their flow of preferences dictated the candidates who ultimately were.
The hearing will conclude on Thursday.
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