Government hopes to lose seat instead of face legal battle

THE NSW Government may be hoping it loses a too close to call upper house seat to the Animal Justice Party to avoid a legal fight and possible fresh election.

But simply pulling out of the race and relinquishing the seat is legally out of the question.

The NSW Electoral Commission has admitted to an error that resulted in 19,000 votes being cast while the AJP and the Outdoor Recreation Party were wrongly missing from the "above the line" section of the ballot.

The AJP and the Liberals are currently neck and neck with about 90% of the primary votes counted, which could spell disaster for the government.

AJP candidate Mark Pearson said the party would take the matter to the Supreme Court if voting remained on level pegging.

"It's fascinating that the Liberal Party doesn't want to get that seat now," he said.

"It's very likely we would win the appeal and we may have to go back to it all over again.

"They're concerned they could then lose a couple of seats from the upper house and lose the balance of power.

"The best scenario for us would be to pick up two seats from the Liberals. Then we would hold the balance of power."

Mr Pearson's legal advisors told him the court may simply choose to hand the seat over to the AJP "if there were only three or votes in it", but that a fresh upper house election would be more likely.

"We probably won't know the outcome until next week," he said.

"All we can really do is sit back and watch."