Ann Arbor to Judge: We’re Not in Contempt

The city of Ann Arbor has responded to a show cause order from federal judge Lawrence Zatkoff by giving arguments that the city should not be found in contempt of court – for sending out nearly 400 absentee ballots that omitted the name of one of the candidates in the Ward 3 Democratic primary. [July 23, 2014 city of Ann Arbor response to Show Cause Order]

Last week the court had essentially ordered the city to present an explanation for the fact that the city clerk sent out 392 absentee ballots for the Aug. 5, 2014 primary election 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. [July 16, 2014 Show Cause Order]

The prior court ruling on May 20, 2014 had held that the city charter’s eligibility requirements are not enforceable. The Ann Arbor city council is addressing this issue by placing new eligibility requirements on the ballot for voters to decide in the general elections to be held on Nov. 4.

The effect of that May 20 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, after it had been included on the original proofs that had been reviewed. The mistake was missed by more than one person. The judge identified the city clerk as ultimately responsible for the mistake, as the last person to handle the misprinted paper ballots as they were inserted into the envelopes and sent to absentee voters.

The May 20, 2014, order from Zatkoff, which ruled Ann Arbor’s charter requirements unenforceable, stated in part: “Defendants must accept and process any nominating petitions submitted by Plaintiff and determine his eligibility.” Implicit in the city of Ann Arbor’s response to the show cause order on contempt is an argument that the court’s order in the original lawsuit dealt specifically with processing Dascola’s filing materials correctly, but not necessarily with the intended effect of processing those materials correctly – to place Dascola’s name on the ballot.

So the city’s argument appears to be based in part on the idea that inspection of the absentee ballots prior to delivery was not strictly speaking a part of the court’s original order. From the city’s response:

The Court has also requested that the Defendants state why they should not be held in contempt of Court “for failing to inspect the Third Ward absentee primary ballots prior to delivery,” in addition to failing to adhere to the Court’s Order. The Court’s Show Cause Order specifically recognizes that such a failure would be separate and distinct from a failure to adhere to the Court’s May 20, 2014 Order.

The city’s response allows that judge Zatkoff nevertheless wants an explanation for the failure to inspect the ballots before sending them out in the mail. The city’s response ticks through several reasons that inspection was not undertaken:

[City clerk Jackie Beaudry] relied on the fact that she had carefully reviewed the ballot proof before she approved it. She relied on the fact that the Washtenaw County Clerk’s Office had the proof ballots and that she would receive printed ballots that had been conformed to the proofed ballots after being reviewed and approved by the Washtenaw County Election Commission. She relied upon the fact that in 9 years as City Clerk she had never received a printed ballot that had been approved by the County Election Commission that later turned out to have a omitted a candidate. She had received 66,000 printed ballots for the election and was trying to get them mailed out as efficiently as possible. Over 1,800 absentee ballots had already been requested. This failure to inspect the ballots prior to mailing was not an action against the Court, the Plaintiff, the other candidates, or the public. It was done because of the sincere belief by the City Clerk and the staff that the ballot they mailed had been previously reviewed and approved.

In a ruling on July 22, 2014, Zatkoff ruled that any votes in the Ward 3 race that are cast on misprinted ballots should not be counted.