Election Commish Live: Which Votes Count?
Update: No decision was made by the city election commission today. The city attorney will be filing a response to Wieder’s motion that does not take a position on the question, but will ask the court to decide. The two sides have agreed to ask the court for an expedited ruling. We’ll get an update on Tuesday, July 15, when the election commission next meets.
At 11 a.m. today, July 8, the Ann Arbor city election commission will meet to discuss the question of how to count votes that are cast in the Ward 3 Democratic primary. In-person voting for the election takes place on Aug. 5, 2014. But the point in dispute concerns ballots that were printed incorrectly and sent to absentee voters.
This was how the incorrectly printed ballots appeared for the Ward 3 Democratic primary race. Bob Dascola’s name was erroneously omitted. The city of Ann Arbor has sent replacement ballots to the absentee voters who received such a ballot. The subject of controversy now is whether votes cast with the incorrect ballot should count.
To listen live to the commission’s discussion, use the audio player below. After the meeting, The Chronicle will make an audio recording available in place of the live-stream player.
The question of counting votes has arisen because the ballots for the race were initially printed incorrectly, omitting the name of one of the candidates. Printed correctly on the ballots were 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.
About 400 of those incorrect ballots were sent to absentee voters. The city has taken steps to attempt to rectify the situation, sending replacement ballots with instructions to those voters who received incorrect ballots. For background on the series of events that led to the incorrect printing of ballots, see “Dascola Mistakenly Left Off Ward 3 Ballot.”
Dascola’s attorney, Tom Wieder, filed a motion in federal court on July 7, asking that the city be enjoined from counting votes in the Ward 3 race that were cast on incorrectly printed ballots. [.pdf of July 7, 2014 motion] [.pdf of July 7, 2014 exhibit] That motion was filed as a request for post-judgment relief in the federal case that was litigated to put Dascola’s name on the ballot in the first place. In that ruling, the court decided that the city charter eligibility requirements are not enforceable. Related to that, the city council is beginning to contemplate the steps necessary to make a change to those eligibility requirements.
The ballot counting situation has been 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 Ann Arbor city council held a closed session during its regular July 7 meeting that could have included discussion of the Ward 3 ballot-counting issue. Because it involves pending litigation, the topic is eligible to be discussed in a closed session held under Michigan’s Open Meetings Act. It’s possible that the election commission might also vote to go into closed session to discuss the issue.
Two key questions that might be addressed by the city election commission are: (1) Does the State Bureau of Elections have binding authority to direct the city election commission on the question of how the ballots are to be counted? and (2) What is the legal basis of the BoE’s conclusion that Ward 3 votes can be counted from ballots that did not include Dascola’s name as a choice?
Under the city charter, the city election commission consists of the city clerk, who serves as chair (Jackie Beaudry), the city attorney (Stephen Postema), and the chief of police (John Seto). The city charter states that the election commission should settle questions about election procedures: “In any case of doubt concerning election procedure, the Election Commission shall prescribe the procedure to be followed.”
Background on some of the legal arguments and counterarguments that might be made during the election commission’s meeting is included in the motion filed on July 7. Wieder’s position might be summarized in the following sentence: “… [A] ‘ballot’ which does not actually present the ‘contest’ to the voter is not a ballot at all, and a listing of fewer than all of the choices a voter can make is not a presentation to the voter of the contest.”
The position of the state director of elections, Christopher Thomas, is expressed in a June 30 letter sent to city clerk Jackie Beaudry, which indicates a concern that voters – who were not able to return a corrected ballot in time, or who would not change their vote to Dascola – would be “disenfranchised” by not having their Ward 3 votes counted from the incorrectly printed ballots.
On the question of the power that the State Bureau of Elections might have to direct a city election commission, according to the motion filed by Wieder, director of elections Thomas has cited MCL 168.21, MCL 168.31(1)(a) and (b), and MCL 168.931 (1)(h), the texts of which are as follows:
168.21. Secretary of state; chief election officer, powers and duties
Sec. 21. The secretary of state shall be the chief election officer of the state and shall have supervisory control over local election officials in the performance of their duties under the provisions of this act.
168.31. Secretary of state; duties as to elections; rules
Sec. 31. (1) The secretary of state shall do all of the following:
(a) Subject to subsection (2), issue instructions and promulgate rules pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, for the conduct of elections and registrations in accordance with the laws of this state.
(b) Advise and direct local election officials as to the proper methods of conducting elections.
168.931. Prohibited conduct; misdemeanors
Sec. 931. (1) A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor:…
(h) A person shall not willfully fail to perform a duty imposed upon that person by this act, or disobey a lawful instruction or order of the secretary of state as chief state election officer or of a board of county election commissioners, board of city election commissioners, or board of inspectors of election.
In the July 7 motion, an analysis is given that concludes that those citations do not form a legal basis for the claimed authority of the state Bureau of Elections to direct the city election commission. That conclusion is based in part on the contention that the Secretary of State has not promulgated rules related to election matters.
[.mp3 of July 8, 2014 Election Commission Meeting]
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At the end of the election commission’s July 8 meeting, it appeared that both Tom Wieder and Stephen Postema were not sanguine about the prospects that a ruling could be obtained from the federal court as early as next Tuesday, July 15. That’s when the election commission meets next. They seemed to be hoping for a decision from the court as quickly as a federal court could act – which they did not seem to think was all that quickly.
But the court seems to be handling at least some of the mechanical and logistical issues very quickly, and seems eager to expedite.
Later in the day, on July 8, Wieder filed a motion for expedited consideration of his earlier motion, filed July 7, which asks the court to enjoin the city from counting votes in Ward 3 races, if they are cast with one of the incorrectly printed ballots. And on the same day, the court granted that motion and ordered a briefing schedule that requires the city to respond to Wieder’s motion by 8 a.m. on Thursday, July 10. The three days for that response is leisurely compared to the two hours Wieder will have to reply to the city’s response, as it would be due at 10 a.m. the same morning. Given Postema’s indication at the meeting that the city would be concurring in asking that the court decide the question, but would not be taking a position one way or another on how the question should be decided, it’s somewhat unlikely that the city’s response, when it’s filed, would provoke a reply from Wieder.
But Postema was expecting to receive additional information from the Secretary of State later in the day on July 8 – information that he wanted to incorporate into the city’s response. So it’s not certain what the city’s response will actually say.
[.pdf of July 8, 2014 motion for expedited schedule] [.pdf of July 8, 2014 order on expedited schedule]
The city’s response to Wieder’s motion was filed today (July 9). It takes no position on the question of how the ballots should be counted. But the entire response brief, including exhibits, runs 49 pages. [.pdf of city of Ann Arbor's July 9, 2014 response]
The reply from Wieder on Dascola’s behalf was filed this morning (July 10) before the 10 a.m. deadline. [.pdf of July 10, 2014 reply brief] From the introductory passages in the reply brief: