Ann Arbor Ballot Dispute: Michigan Wants In

Michigan’s Secretary of State has asked the federal district court to be allowed as an intervening party to an action that is currently pending before the court – on the question of how to count ballots in the city of Ann Arbor Ward 3 Democratic primary.

From left: Bob Dascola, Secretary of State seal, city of Ann Arbor seal.

The motion on behalf of the Secretary of State was filed by the Michigan Attorney General on Friday, July 11. [.pdf of July 11, 2014 motion to intervene]

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.  The question of counting votes has arisen because the incorrectly printed ballots omitted 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.

Just a few days after the roughly 400 incorrectly-printed ballots were sent out, the city sent out replacement ballots with a letter of instructions. The city is making additional efforts to contact voters who sent in an incorrectly-printed ballot – to reduce the potential number of ballots that might eventually be in dispute. The disputed question is whether to count any votes in the Ward 3 race that are might cast on an incorrectly printed ballot.

Amid the ballot-counting controversy, the candidates continue to campaign for the seat to represent Ward 3 in the city of Ann Arbor – a ward that has historically seen some close primary races. In 2009, the margin achieved by Stephen Kunselman over the Ward 3 incumbent, Leigh Greden, was just six votes.

All three candidates appeared in a League of Women Voters candidate forum earlier this week. Chronicle coverage in ”Ward 3 Candidate Forum: CTN Broadcast” includes an embedded video player for playing back the forum, along with a transcript in a scrollable text box.

The Ward 3 candidates are also invited to participate in the Ann Arbor Democratic Party city council candidate forum, scheduled for Saturday, July 12 at 10 a.m. at the Ann Arbor Community Center, 625 N. Main St. The Chronicle is planning to provide a live audio feed from that event.

The Secretary of State’s current position is that votes in the Ward 3 race that are cast with the incorrectly printed ballots should still be counted – if no replacement ballot is sent in by the voter. That’s a reversal of the state’s own position taken when the question was first considered. The state is asking the federal court to be allowed as an intervening party, in order to put its arguments in front of the court. The state’s motion to intervene comes after Bob Dascola’s attorney, Tom Wieder, filed a motion at the beginning of the week – on Monday, July 7 – seeking to prevent the city of Ann Arbor from counting Ward 3 votes cast on defective ballots.

Wieder’s July 7 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 city’s response to Wieder’s motion, filed two days later, took 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 the following day. [.pdf of July 10, 2014 reply brief]

The week began with Wieder’s motion on July 7, the same day that the city council held its regular meeting, on the first Monday of the month. A closed session held by the council that night reportedly included the topic of the ballot counting question.  The following morning, at the July 8, 2014 meeting of the Ann Arbor election commission, city attorney Stephen Postema portrayed the dispute as one between the Secretary of State and Dascola, on which the city was not going to take a position.

At the end of the election commission’s July 8 meeting, it appeared that both Wieder and 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 asked 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 to expedite and ordered a briefing schedule that required the city to respond to Wieder’s motion by 8 a.m. on Thursday, July 10. Wieder’s reply was due at 10 a.m. the same morning. [.pdf of July 8, 2014 motion for expedited schedule] [.pdf of July 8, 2014 order on expedited schedule]

The motion to intervene, filed by the Secretary of State, could slow the pace of the decision. The Secretary of State’s motion to intervene is based on a basic assertion of the right to do so. From the motion:

Under Fed. R. Civ. P. 24(a)(2), “[o]n timely motion, the court must permit anyone to intervene who…claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”

Included in the Secretary of State’s filing is the brief that it would like the court to consider, if it is admitted as an intervening party.  That brief identifies four key questions believed by the Secretary of State to be central to the court’s ruling on Wieder’s July 7 motion:

CONCISE STATEMENT OF ISSUES PRESENTED

1. Whether this Court should abstain from ruling on this matter where there are substantial issues of state law involving the authority of the Secretary of State to issue direction and guidance to the local clerks and there are ongoing efforts to establish coherent state policy?
2. Is Dascola’s claim ripe where: (a) efforts are underway to contact the absentee voters who were sent replacement ballots and (b) where the ballots in question may not determine the outcome, and thus Dascola cannot show that he has yet been injured?
3. Whether voters who returned a ballot that was defective through a printing error should be disenfranchised based on Plaintiff’s assumption of what voters might otherwise have done in the absence of a printing error?
4. Whether under Michigan law, the Secretary of State has the authority to issue direction and guidance to the local clerks without promulgating formal rules?

The initial phase of the lawsuit ended with the court ruling that the city of Ann Arbor’s city charter requirements were not legally enforceable. That initial phase resulted in a settlement of legal fees in the amount of $30,731 to be paid to Wieder. That amount was based on 93.25 hours of work.

Based on records produced to The Chronicle under a Freedom of Information Act request, staff in the city of Ann Arbor’s attorney’s office put in 119.5 hours on the case just during that initial phase – through May 9.

Depending on how the court rules on the current pending motion, additional fees could be awarded.

Updated July 14, 2014: Wieder has filed a response on Dascola’s behalf opposing the Secretary of State’s motion to intervene. [.pdf of July 2014 response by Dascola] The city of Ann Arbor has filed a response concurring with the motion by the Secretary of State to be allowed as an intervening party. There’s also an update in the city’s response on the number of potentially disputed ballots:

As of the City Clerk’s receipt of the mail on July 14, 2014, there currently are only 12 first ballots remaining for which a second replacement ballot has not been received. Concerning the 12 remaining first ballots, 5 of these voters have indicated they will return the second replacement ballot and 1 of these voters indicated he would have his spouse return the replacement ballot. Only 3 first ballots have been received that appear to be dated after July 4, 2014. The ballots being returned are primarily the second replacement ballots. Of the 392 persons who received the second replacement ballots, 121 persons have already returned them. [.pdf of July 14, 2014 city of Ann Arbor motion]

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