On May 6, 2014, the final court-ordered supplemental briefs were submitted by both sides in the lawsuit, filed by Bob Dascola against the city of Ann Arbor. Dascola contends he’s an eligible candidate and wants the court to order that he be placed on the ballot in the Ward 3 city council Democratic primary. He would join Julie Grand and Samuel McMullen in that election, which will be held on Aug. 5, 2014.

But as the electorate awaits a ruling from federal judge Lawrence Zatkoff, the two sides have continued to lather up. Late last week, Tom Wieder – the attorney for Dascola – filed a motion asking permission from the court to file an amended complaint. The motion for leave to file the amendment describes the nature of the amendments as clarifying the precise source of rights that Dascola is seeking to enforce in his lawsuit [the Equal Protection Clause of the 14th Amendment and his rights under 42 U.S.C. §1983], and to clarify the basis of the claim for attorney fees, if Dascola wins. The motion contends that the changes to the complaint are minimal and raise no new legal or factual issues. On its face, the motion appears intended to ensure that Wieder can be paid, if Dascola were to prevail.

However, in responding to the motion for leave to file an amended complaint, Ann Arbor city attorney Stephen Postema offers a cutting characterization. He calls it ”procedurally odd” and accuses Wieder of failing to exercise due diligence in filing the motion. In addition, Postema responds to arguments made in Wieder’s supplemental brief, on the substance of the lawsuit. The substantial issue raised by the lawsuit involves the status of laws – like the city’s charter durational residency and voter registration requirements – when those laws have been found to be unconstitutional, null and void by a federal court.

Wieder responded in kind to the city’s brief, writing that the city does the following:

1) Misrepresent the nature of the proposed Amendment; 2) Misrepresent authority on the issue of futility and its applicability to this case; 3) Continue its fabricated argument that Plaintiff claims Charter Section 12.2 was “repealed” by the Feld and HRP decisions; 4) Produce and present to the Court what is, essentially, a Response Brief to Plaintiff’s Supplemental Brief, although none was called for by the Court’s Order; and 5) Present a fanciful “parade of horribles” that will befall the Court, the candidates, “possible donors and supporters,” the public and the Defendants if the Amendment is allowed.

By way of background, Ann Arbor’s city charter includes two durational requirements for city councilmembers – that they be registered voters in the city for a year before election, and that they be residents of the ward they seek to represent for a year before election.

Dascola contends that he meets the residency requirement. He allows that he does not meet the voter registration requirement. But Dascola’s core legal claim is that the two charter provisions were struck down as unconstitutional, null and void in federal court cases dating from the 1970s. The city contends that it can enforce the two city charter requirements based on case law that evolved subsequent to the 1970s cases.

The court ordered an expedited schedule so that the issue might be resolved before early June, when ballots must be printed. Briefs, responses, and replies had already been filed in April on motions for summary judgment and dismissal.

Here’s the complete set of briefs in the Dascola case, including the filings from last week.

• 03.28.14 [.pdf Dascola v. City of A2: Complaint]
• 03.29.14 [.pdf Dascola v. City of A2: Motion for Summary Judgment]
• 04.14.14 [.pdf Dascola v. City of A2: Motion to Dismiss]
  
• 04.14.14 [.pdf Dascola v. City of A2: Response to Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Reply in Support of Motion for SJ]
• 04.18.14 [.pdf Dascola v. City of A2: Response to Motion to Dismiss]
• 04.23.14 [.pdf Dascola v. City of A2: Reply to Response to Motion to Dismiss]
• 05.06.14 [.pdf Dascola v. City of A2: Plaintiff's Supplemental Brief]
• 05.06.14 [.pdf Dascola v. City of A2: Defendant's Supplemental Brief]
• 05.08.14 [.pdf Dascola v. City of A2: Motion for Leave to File Amended Complaint]
• 05.09.14 [.pdf Dascola v. City of A2: Response to Motion for Leave to File Amended Complaint]
• 05.11.14 [.pdf Dascola v. City of A2: Reply to Response to Motion for Leave to File Amended Complaint]

Absentee voter applications are not printed on baseballs. This is just someone's execution of the concept that "Every article should have art!"

Now, you don’t have to go to the game in order to qualify for an absentee ballot. But just to be clear, if you do plan to make a whole day event out of your visit to Detroit to watch the game, that will absolutely qualify you for an absentee ballot. If you expect to be out of town, that’s a legally valid reason for voting absentee.

Maybe some of you would even like to make the short drive in to the ballpark after a Monday night stay at the Westin Book Cadillac – from what I understand, it’s a pleasant place to spend the night, even if you’re not a Washtenaw Communty College trustee.

What about you Chronicle readers who aren’t baseball fans? If you want to vote absentee, the current election law specifies a limited set of other reasons you can use, which include being older than 60, being in jail, or having religious beliefs that prevent attending the polls.

The topic came up a bit more than a week ago, when the Ann Arbor city Democrats hosted a forum for candidates contesting the Democratic primaries for Michigan’s 52nd and 53rd district state House seats. Jeff Irwin, who along with Ned Staebler is running for the 53rd District seat, threw out an idea for a tweak in Michigan’s election laws.

Irwin said he’d like to see “on-demand absentee” voting – citizens would be able to obtain an absentee ballot and avoid the lines at the polls for any or no reason at all. It’s not some new screwball idea – it’s been around a while and enjoys a lot of support, from Washtenaw County clerk Larry Kestenbaum, among others.

For the time being, though, the application for an absentee ballot requires that voters commit, you know, really commit – just like the guy on the mound has to commit to delivering the ball to the plate after starting in that direction – to at least one of the allowable reasons under the state statute. Through June 17, according to the first Absent Voter report sent out last week via email by the city clerk, over 1,800 Ann Arborites have already committed to one of those reasons.

The Absent Voter Report

Last week, the Ann Arbor city clerk’s office sent out an email containing its first Absent Voter report – absentee ballot applications requested through June 17. The first one, as well as subsequent reports, contains an updated list of names and addresses of all voters who have applied for an absentee ballot. That first email indicated that the city has taken delivery of its ballots, so starting this week, the absentee ballots will be mailed out to those who’ve requested them.

How do you sign up for the city clerk’s email alert service? It’s as simple as telling the city clerk you’d like to be added to the “daily AV list.”

Who would want to receive timely updates about people who’ve applied for absentee ballots as those requests roll in? Candidates on those ballots have a clear interest in knowing who has requested ballots and whether the ballots have been returned – both pieces of information are provided in the daily AV list.

As The Chronicle noted back in May, as a part of its coverage of the finalized primary field, someone who’s requested an absentee ballot is highly likely to vote, so from that point of view, candidates typically see them as a good time investment. It’s worth an extra knock on their door or an extra postcard in the mail. Similarly, if the person has already voted by absentee ballot, well, contacting them is not going to change their vote – a candidate’s time might be better invested knocking on new doors.

How Many People Vote Absentee?

Absentee ballot applications are accepted starting 75 days before the election. Calculating backwards from Aug. 3 puts the start of application acceptance on May 21. In the first daily AV list sent last week, 1,860 voters were listed. Broken down by ward, here’s what that picture looks like – the percentages indicate the percent of total ballots requested so far:

Absentee ballot requests
through June 17, 2010
for Aug. 3 primary

214 Ward 1  11.5%
569 Ward 2  30.6%
319 Ward 3  17.2%
475 Ward 4  25.5%
283 Ward 5  15.2%

Total: 1,860

-

That percentage distribution of absentee ballots roughly parallels the November 2009 general election absentee voting percentages. Separate absentee ballot count boards – one for each ward – made a breakdown of absentee votes visible in the election results [Ward 1, Ward 2, Ward 3, Ward 4, Ward 5]:

Absentee Voting
by Ward in Ann Arbor
November 2009

236 Ward 1   9.9%
678 Ward 2  28.4%
390 Ward 3  16.3%
551 Ward 4  23.1%
533 Ward 5  22.3%

Total 2,388

-

Ward 5 accounted for a greater relative percentage of the total absentee vote in the November 2009 general election than it does in the early requests for ballots for the Aug. 3, 2010 primary, but it’s still relatively early in the ballot request season – the daily AV report for Monday, June 21 added another 49 names and addresses.

How Many Is a Lot of Absent Voters?

Based on the general election of November 2009 and the early absentee ballot application numbers, it looks like the absentee voter numbers for the Aug. 3 primary will, on the very conservative side, be at least 2,000. Is that a lot?

Viewed through the lens of the last two Democratic mayoral primaries, 2,000 votes works out to be roughly the difference between a clear victory and a virtual dead heat.

In 2008, when Tom Wall challenged John Hieftje for mayor, Wall received 3,394 votes to Hieftje’s 7,447. Shift 2,000 votes to Wall and Wall would have still been short – 5,394 to 5,447 – but not by much.

Two years earlier in 2006, when Wendy Woods challenged Hieftje, she received 2,913 votes to Hieftje’s 6,703.  Shift 2,000 votes to Woods and Woods would have prevailed 4,913 to 4,703.

So it’s fair to say 2,000 votes is a lot of votes. It’s easy to understand why candidates for public office in Ann Arbor “work the absentees,” using the daily AV lists – they’re not just almost certain to vote, their numbers are great enough to have a potential impact on the election.

The Penalty of Law

The kind of on-demand absentee voting advocated by Jeff Irwin at the city Democratic Party candidate forum does not currently exist. Absent voter ballots require “application” because Michigan does not currently allow for absentee voting for no reason. An exhaustive list of justifiable reasons that can be checked on the absentee ballot application is:

• age 60 years old or older
• unable to vote without assistance at the polls
• expecting to be out of town on election day
• in jail awaiting arraignment or trial
• unable to attend the polls due to religious reasons
• appointed to work as an election inspector in a precinct outside of your precinct of residence.

The application notes that “A person making a false statement in this absent voter ballot application is guilty of a misdemeanor.” And a call to the state’s Bureau of elections confirmed that the check on the accuracy of statements – including the reason cited justifying the right to vote absentee – is the application itself. In signing the form, an applicant for a ballot is attesting: “I declare that the statements in this absent voter ballot application are true.”

Irwin isn’t alone in advocating for reform that would eliminate the need to commit to a reason for voting absentee. Archived on Washtenaw County clerk Larry Kestenbaum’s blog, Polygon, the Dancing Bear, is part of a Nov. 12, 2006 Ann Arbor News Q&A conducted by reporter Dave Gershman:

Q: What’s the trend you’re seeing in terms of absentee ballots?

A: Absentee ballots are being used more widely over time and you can see the percentage creeping up little by little, year by year. That may also have to do with the aging population as well. If you’re 60 years of age or older you’re automatically eligible to use an absentee ballot without having to state another reason.

And people certainly are aware of the fact that if you choose to vote absentee you can put down that, yes, you plan to be out of the jurisdiction on Election Day even if those plans later change. There has been a movement in the Legislature to enact basically freedom to use an absentee ballot instead of showing up in person without having to state a reason. That legislation, although supported by virtually all of the county and municipal clerks in the state and supported by the secretary of state, did not move forward in the Legislature in the last couple of years. It may in the next one.

Q: And you support that?

A: Oh, absolutely. … If people want to vote absentee they should be able to vote absentee, and the notion of swearing to a reason is really pretty superfluous.

That Q&A was published four years ago. But in response to a recent emailed query, Kestenbaum says: “All those things are still perfectly valid as far as I’m concerned.”

I think the case for on-demand voting is pretty straightforward: it would remove various barriers to participating in democracy. On-demand absentee voting would eliminate the need to make your vote on a specific day, the need to stand in a possibly long line, the need to brave possibly inclement weather, the need to arrange transportation to a polling place, among other barriers.

I don’t think on-demand absentee voting would be a grand-slam home run for democracy. I don’t think that such voting by itself would increase participation in the Ann Arbor August primaries a whole lot, beyond the roughly 14% of registered voters who decided the 2008 mayoral primary.

But improving our democratic process is not about hitting home runs – it’s about getting base hits. And on-demand absentee voting is like a solid base hit, straight up the middle.

For now, you need a reason for voting absentee. Planning an out-of-town excursion on election day – to a Tigers game – just so you can vote absentee might seem a little elaborate. But at least it means you’re planning to vote.

Absentee ballots can be requested by mail until the Saturday before the election. This year that’s July 31. The absentee ballot application form is available on the city clerk’s part of the city of Ann Arbor website. It can be sent via the full range of modern communication technologies: mailed; hand delivered to the city clerk’s office at 100 N. Fifth Ave., Ann Arbor, MI 48104; faxed  to 734-994-8296; or scanned and emailed to cityclerk@a2gov.org.

Go Tigs.

About the writer: Dave Askins is editor of The Ann Arbor Chronicle.

Steve Bean obtains nominating petitions as an independent candidate for mayor of the city of Ann Arbor. Behind the glass in the city clerk's office is Lyn Badalamenti. (Photos by the writer.)

It’s a five-minute session at the city clerk’s office.

This brief background piece covers some of the nuts and bolts of that process, based on Steve Bean’s Tuesday afternoon appearance on the second floor of city hall at the city clerk’s office. As a bonus, there’s a bit of city history thrown in.

After Bean told Lyn Badalamenti in the city clerk’s office that he was there to pick up nominating petitions, she set to work assembling a sheaf of papers. The spelling of Bean’s family name was the first order of business: “Like the vegetable,” he offered. Next up: A choice between “Steve” versus “Steven.”

The name that potential signatories of Bean’s petitions will see – as well as voters looking at November’s ballot – is “Steve.”

His name will be recognizable to some readers from his service on the city’s environmental commission. He now chairs that body. Before that, he served for nine years on the city’s energy commission. Some city records, especially older documents like city council minutes from April 9, 1992 – which contain the record of his appointment to the energy commission – show Bean’s name as “Steven.”

But the choice for the shortened variant was one he’d thought through before Badalamenti asked him: “That’s how people know me,” Bean explained to The Chronicle.

In the category of “the more things change,” those April 9, 1992 minutes indicate a discussion of over-exuberant University of Michigan basketball fans who apparently aroused concerns about public safety. They were celebrating the team’s advancement to the Final Four in the NCAA tournament. [The Wolverines lost in the final game that year to Duke University.]

In the category of “the more they stay the same,” the minutes indicate that one of Bean’s fellow energy commission appointees was Weston Vivian. Vivian, like Bean, goes by the shortened version of his name – that’s “Wes.” And Vivian spoke this past Monday to the city council during a public hearing on the Google Fiber initiative. Vivian told councilmembers that if Google doesn’t choose Ann Arbor as a location to install a fiber network, the city needs to figure out another way to make it happen.

Also in the category of things that stay the same are the petition requirements that Badalamenti handed to Bean as part of the sheaf of papers that all candidates receive. That packet includes:

• 400 lines worth of qualifying petitions – 20 pages with 20 lines apiece
• a sheet of rules for candidates who are circulating nominating petitions for city offices
• a message from Washtenaw County clerk Larry Kestenbaum, outlining the campaign finance reporting requirements
• the statement of organization form for candidate committees from the Michigan Department of the State Bureau of Elections
• the form for the post-election campaign finance compliance statement
• an affidavit of identity and receipt of filing

The qualifying petitions were copied with Bean’s name already filled in. That’s why Badalamenti needed it – to comply with the city charter requirement that petitions specify the person on whose behalf the petitions are to be circulated:

13.8 (b) Before the Clerk furnishes petition forms to any person, the Clerk shall enter thereon, in ink or by typewriter, the name of the person in whose behalf the petition is to be circulated and the name of the office for which the person is a candidate. No petition form which has been altered with respect to such entries shall be received by the Clerk for filing.

It’s not illegal to obtain and circulate petitions on behalf of someone else. But it’s not possible to place someone’s name on the ballot against their will:

13.10 (a) When petitions are filed by persons other than the person whose name appears as a candidate, they may be accepted for filing only when accompanied by the written consent of the person in whose behalf the petition was circulated.

Bean will need to collect at least 50 signatures from each of the city’s five wards for a total of at least 250. It’s not possible to engage in the intimidation tactic of collecting a number of petitions massively in excess of the minimum [emphasis added]:

13.8 (a) [...] Each petition filed by or on behalf of a person seeking nomination to the offices of Mayor shall be signed by not less than 250 nor more than 350 registered electors including at least 50 signatures of residents of each ward. [...]

The petition filing deadline for independent candidates like Bean – those without a party affiliation – is different from the deadline for candidates contesting one of the party’s primaries:

Act 116 168.590c Sec. 590c.
(1) A qualifying petition for an office shall be filed with the filing officer authorized to receive a partisan nominating petition or a certificate of nomination for that office.
(2) A qualifying petition for an office elected at the general November election shall be filed not later than 4 p.m. of the one hundred-tenth day before the general election. A qualifying petition for an official elected at an election other than the general November election shall be filed not later than the deadline established by statute or charter for filing a partisan petition or certificate of nomination for the office or at least 90 days before that election, whichever is later.

This year, 110 days before the Nov. 2, 2010 general election translates to July 15, 2010.

After filing petitions, it’s possible to change your mind and not have your name appear on the ballot. But it’s a narrow window:

(3) A candidate who files a qualifying petition shall not be permitted to withdraw his or her candidacy unless a written notice of withdrawal is filed with the filing officer who received the petition. The notice shall be filed not later than 4 p.m. of the third day after the last day for filing a qualifying petition.

For candidates contesting either the Republican or Democratic primary, the deadline for filing petitions is determined by the 12th Tuesday before the Aug. 3, 2010 primary – May 11 this year.

Finally, for citizens who are asked by prospective candidates for office to sign their nominating petitions, signing does not represent an obligation to vote for that person come election day. But there is a kind of obligation attached – signing nominating petitions for different candidates for the same office results in the disqualification of both signatures:

13.9 (b) If any person signs a greater number of petitions for any office than there will be persons elected to that office, that person’s signature shall be disregarded on all petitions for that office.

The city of Ann Arbor website has additional information on filing petitions for Ann Arbor city office on the city clerk’s page.

Steve Bean, 46, is vice president of Berg & Associates, Inc. He designs database management systems for Berg clients. Peter Schermerhorn will serve as Bean’s campaign treasurer.