A procedural issue related to the Ann Arbor Ward 3 city council ballot counting question has been decided by a federal court as expected: The Michigan Secretary of State has been allowed as an intervening party in the dispute.
Not necessarily expected, however, was the court’s issuance of a show cause order that requires the city of Ann Arbor to demonstrate why the city is not in contempt of court.
The court has essentially ordered the city to present an explanation for the fact that the city clerk sent out ballots to 392 absentee voters in the Aug. 5, 2014 primary that did not contain Bob Dascola’s name – after the court had earlier ruled that the city’s eligibility requirements could not be enforced against Dascola.
Both of the most recent decisions were issued by the court on July 16, 2014.
The prior court ruling on May 20, 2014 had held that the city charter’s eligibility requirements are not enforceable. And the effect of that ruling was that the city was supposed to place Bob Dascola‘s name on the Ward 3 city council ballot for the Aug. 5, 2014 Democratic primary. Printed correctly on the ballots were the names of the other two candidates: Julie Grand and Samuel McMullen.
However, a series of events led to the omission of Dascola’s name from the printed ballots. Dascola’s name was initially not included in the information provided to the county’s third-party ballot programmer – Government Business Systems (GBS). But when the federal court ruling was made last month – that the city charter’s eligibility requirements were not enforceable – the new Ward 3 candidate slate, including Dascola, was provided to GBS. Proofs of the ballots were then sent to the county clerk and the city clerk as well as to the candidates. Those proofs included Dascola’s name – so the ballots survived those checks.
Then, a change to the ballots was requested by the city of Ypsilanti – to remove city council races from Ypsilanti ballots where there was not a contested race. This is a city charter provision – that when there’s not more than one candidate for a primary race, it’s not included on the ballot. As a part of that revisions, GBS removed the city of Ann Arbor council races. The proofing process identified that error. But in restoring the Ann Arbor city council races to the ballot, GBS reverted to the initial slate – which did not include Dascola’s name.
At that point the mistake was missed, by the county clerk’s office and by by the county election commission, which consists of the county clerk (Larry Kestenbaum), county treasurer (Catherine McClary) and the chief probate judge (Darlene O’Brien). The city clerk was not provided proofs of the incorrect ballots.
A total of 392 misprinted ballots were sent to absentee voters. The court has been informed of the circumstances surrounding the misprinting of the ballots, but seems unimpressed by those circumstances as excusing the city from responsibility [emphasis added]:
Further, the Court has reviewed Defendants’ explanation as to how this failure occurred and found it wanting. Defendants are ready to assign blame for this failure to computer programmers, vendors, and various municipal agencies, yet never acknowledge or take any responsibility. Defendants’ explanation completely ignores the responsibility levied upon them by this Court’s May 20, 2014, Opinion and Order. Further, Defendants admit that the office of Defendant City Clerk individually placed 392 inaccurate ballots into envelopes prior to delivery. Yet Defendants provide absolutely no explanation why Defendants failed to review any of the 392 absentee ballots prior to placing them in envelopes.
The city of Ann Arbor has until July 23, 2014 to respond to the court’s show cause order. The mood of the court is further reflected in the order by the requirements for the response: “Defendants’ response to the Order to Show Cause shall contain specific and accurate legal support, including pinpoint citations to authority relied upon, and shall be limited to ten pages and comply with E.D. Mich. L.R. 5.1.”
A resident who received the incorrectly printed ballot identified the ballot printing error. And since that time, the city clerk has focused on reducing the impact of the error. The city has sent replacement ballots to all voters who received a misprinted ballot, with a letter of instructions. The city is also actively attempting to contact voters who have sent in a misprinted ballot so that they can send in a correctly printed ballot.
The ballot-counting dispute concerns the question of how votes on misprinted ballots should count for the Ward 3 race, if a voter does not submit a correctly-printed replacement ballot. And the city’s election commission is getting updates from the city clerk on how many potentially disputed ballots remain. As of the election commission’s July 15, 2014 meeting, the number of potentially disputed ballots stood at 10. In the Ward 3 primary, the estimated total number of votes to be cast is around 3,000.
Dascola’s position is that votes in the Ward 3 race that are cast on the misprinted ballots should not count. Dascola’s attorney, Tom Wieder, filed a motion expressing that position – as post-judgment relief in the lawsuit that was won to put Dascola on the ballot in the first place. Michigan’s Secretary of State takes the position that such ballots should be counted. [See ”Ann Arbor Ballot Dispute: Michigan Wants In”] Because the court granted the Secretary of State’s motion to intervene, the court will now consider the arguments made by the Secretary of State for its position that the misprinted ballots should be counted. And Dascola will have a chance to respond to those arguments.
Updated July 18, 2014: The reply to the Secretary of State’s response brief was filed by Dascola’s attorney, Tom Wieder, on July 17: [.pdf of reply to response brief]
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