Court: Don’t Count Ward 3 Defective Ballots

In a ruling from federal judge Lawrence Zatkoff, the city of Ann Arbor has been ordered not to count votes in the Ward 3 city council primary race that were cast on misprinted absentee ballots – which omitted the name of one of the candidates. The order was issued on July 22, 2014. [.pdf of July 22, 2014 order]

The ruling makes clear that votes in races other than the Ward 3 city council race can be counted from the misprinted ballots. In-person voting takes place on Aug. 5, 2014.

That ruling came in response to a motion filed by Ward 3 candidate Bob Dascola’s attorney, Tom Wieder, on  July 7, 2014, asking that the city be enjoined from counting votes in the Ward 3 race that were cast on incorrectly printed ballots.

The question of counting votes arose 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.”

The number of potentially disputed ballots currently stands at less than a dozen.

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 voted at its July 21, 2014 meeting to place legally enforceable charter requirements in front of voters for the Nov. 4 general election.

The July 22 ruling from the court came in favor of Dascola, even though the Michigan Secretary of State had, on July 11, 2014, filed a successful motion to be allowed as an intervening party – and had argued for counting Ward 3 votes on the misprinted ballots.

The July 22 order includes a requirement that the city, Dascola and the Secretary of State all file with the court by noon on July 25 a description of the procedures that will be used to count votes in the Ward 3 race. One of the specific questions they must answer in their filings is: “What process will the Ann Arbor Defendants and the Secretary of State use to guarantee only those absentee votes cast for Third Ward Councilmember on accurate ballots are counted?”

In its July 22 order, the court also awarded as-yet-unspecified attorney fees to Dascola. As part of the lawsuit that put Dascola on the ballot, the city was already paying Wieder $30,731 in attorney’s fees and costs.

In addition to the description of the procedures it will use to ensure compliance with the court’s order on ballot counting, the city also must respond by July 23 to a show cause order from the court, explaining why the events that led to the omission of Dascola’s name do not amount to contempt of court.


  1. By Jack Eaton
    July 22, 2014 at 3:52 pm | permalink

    Thank you for your continuing coverage of this litigation. I also appreciate that you link to copies of the Court’s decisions and orders.

  2. July 22, 2014 at 4:34 pm | permalink

    And isn’t this a great use of City money even after it knew it had made an error?

  3. By Janis Bobrin
    July 22, 2014 at 6:55 pm | permalink

    With regard to Cendra Lynn’s comment, I think it’s important to note that the City had nothing to do with the error on the ballot. Ballots were printed for and under supervision of the County Clerk. The City Clerk did not even have an opportunity to review them.

  4. By Mark Koroi
    July 23, 2014 at 12:35 am | permalink

    Great opinion by Judge Zatkoff!

    Page 16 of the opinion and order clearly awards Mr. Dascola all further costs and reasonable attorney fees incurred in conjunction with these post-judgment proceedings filed by his counsel – so expect the Ann Arbor City Attorney’s office to be requesting an updated cost and fee itemization from Tom Wieder. If the city and Mr. Wieder cannot agree on a reasonable figure, the court will have to hold an evidentiary hearing – but that is unlikely to happen.

    The article correctly indicates that the City of Ann Arbor’s response to the order to show cause why the City of Ann Arbor should not held in contempt of court is due on July 23rd. I look forward to the City Attorney’s response.

    @Janis Bobrin:

    “…..I think it’s important to note the City had nothing to do with the error on the ballot…..”

    Judge Zatkoff has already found otherwise since the City Clerk staff stuffed the envelopes with the erroneous ballots apparently without inspecting them to ensure they were in compliance with the court’s prior order. An argument can be made that the City Attorney’s office should have compared the ballot content with the substance of the trial court’s order before the ballots were mailed out to absentee voters.

    It also is apparent that someone at City Hall “dropped the ball” in not giving adequate assurances to Mr. Dascola’s counsel that incorrect ballots would not be counted – and that resulted in the filing of the motion that granted further costs and attorney fees to Mr. Dascola’s counsel. Tom Wieder has claimed he contacted the City Attorney’s office on this matter for such assurances – and received none.

    Did Jack Eaton say a City Council annual performance review is “around the corner” for the City Attorney…………….?

  5. By Alan Goldsmith
    July 23, 2014 at 8:10 am | permalink

    “With regard to Cendra Lynn’s comment, I think it’s important to note that the City had nothing to do with the error on the ballot. Ballots were printed for and under supervision of the County Clerk. The City Clerk did not even have an opportunity to review them”

    The City WAS responsible for the pointless lawsuit to keep Mr. Dascola off the ballot in the first place, a decision that appears to be more politically rather than legally based. There is plenty of blame to share over this undemocratic fiasco but it all started with the City Attorney.

  6. By Tom Wieder
    July 23, 2014 at 12:20 pm | permalink

    @ Janis Bobrin – “The City Clerk did not even have an opportunity to review them.”

    This simply isn’t true. When the ballots were delivered to the A2 Clerk’s Office, the Clerk had a full opportunity to review the ballots before sending 392 defective ones to absentee voters. The Clerk didn’t make the only mistake, but she made the final one – failing to inspect – that put ballots without Dascola’s name on them in the hands of voters.