Motion Filed on Ward 3 Ballot Counting

In connection with the Aug. 5, 2014 Democratic primary elections for Ann Arbor city council, a disagreement emerged last week over how to count votes cast with incorrectly printed absentee ballots for the Ward 3 race. And that disagreement has now resulted in a motion filed in federal court.

The motion, filed by candidate Bob Dascola’s attorney Tom Wieder, asks the court to permanently enjoin the city from counting votes in the Ward 3 race that are cast on incorrectly printed ballots if they are not replaced with corrected ballots. [.pdf of July 7, 2014 exhibit] [.pdf of July 7, 2014 motion]

The disagreement stems from incorrectly printed ballots, 400 of which were sent to Ward 3 absentee voters. Printed correctly on the ballots were the names of candidates Julie Grand and Samuel McMullen. However, Bob Dascola – who had filed a successful lawsuit against the city in order to be a candidate – was mistakenly left off the ballots.

In a May 20 federal court ruling, the city charter’s eligibility requirements were found to be unenforceable. The July 7 motion to prevent the city from counting Ward 3 votes cast on incorrect ballots was filed as part of that same case – as a request for post-judgment relief.

The incorrectly printed ballots were sent out to about 400 absentee voters in the last week of June. But on Monday, June 30, replacement ballots and a letter of instructions were sent, telling voters about the printing error. Voters who had not yet voted were told in the city’s letter that they should destroy the previous ballot and vote with the replacement ballot. Voters who have already sent in their absentee ballots were told in the letter to “please vote and return this replacement ballot in the enclosed envelope.”

The city’s election commission – which consists of the city clerk, the chief of police and the city attorney – is scheduled to meet at 11 a.m. on July 8 to discuss the matter.  The Ann Arbor city council held a closed session lasting 30 minutes as part of its July 7 regular meeting. That closed session may have included the ballot-counting question.

The situation was complicated by the fact that the Michigan Dept. of State reversed its own position on the matter. On Friday, June 27, the Michigan Dept. of State had indicated that if someone mails in only the incorrect ballot, then their Ward 3 vote on the incorrect ballot should not be counted. Their votes in other races, however, should be counted. [.pdf of June 27, 2014 email from Michigan Dept. of State] But by Monday, June 30, the Michigan Dept. of State had reached a different conclusion. That new conclusion was this: If a voter submits only an incorrect ballot, then their vote in the Ward 3 race will count. [.pdf of June 30, 2014 email from the Michigan Dept. of State]

The letter sent by the city of Ann Arbor to voters who received replacement ballots does not appear to take a position on the question of whether a Ward 3 vote will be counted if it is submitted only on an incorrect ballot. [.pdf of June 30, 2014 city of Ann Arbor letter template]

At that time, Wieder told The Chronicle in a telephone interview that “if we do not receive an affirmative assurance that those ballots will not be counted, then we’ll be back in federal court.” The assurance was not given. As a result, Wieder filed the July 7 motion.