Judge to Ann Arbor: You’re NOT in Contempt

Federal judge Lawrence Zatkoff has concluded that the city of Ann Arbor is not in contempt of court for mailing out nearly 400 absentee ballots that omitted the name of one of the candidates in the Ward 3 Democratic primary. The order was issued on July 28, 2014. [.pdf of July 28, 2104 order]

The ruling came after the city of Ann Arbor  responded to a show cause order from Zatkoff by giving arguments that the city should not be found in contempt of court – for sending out 392 absentee ballots for the Aug. 5, 2014 primary election that did not contain Bob Dascola’s name. The court had earlier ruled that the city charter eligibility requirements for elected officers could not be enforced against Dascola, with the expectation that Dascola’s name would appear on the ballot. [July 16, 2014 Show Cause Order] Printed correctly on the ballots were the names of the other two Ward 3 candidates: Julie Grand and Samuel McMullen.

Two weeks ago, the court had essentially ordered the city to present an explanation for the omission of Dascola’s name. The city’s response to the show cause order was filed on July 23.  [July 23, 2014 city of Ann Arbor response to Show Cause Order]

In Zatkoff’s July 18 ruling, he wrote: “The Court, having considered all the evidence before it, hereby accepts Defendants’ explanation of the underlying events. Further, the Court finds that Defendants actions do not rise to the level of contempt of this Court.”

It was an unusual series of events that 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 had 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 city has taken steps to attempt to rectify the situation, sending replacement ballots with instructions to those absentee voters who received incorrect ballots. The question of how votes would be counted on the misprinted ballots – in the event someone did not send in a replacement ballot – was disputed. Dascola’s campaign argued that such votes should not be tallied, while the city took no position, and Michigan’s Secretary of State successfully intervened in the motion, arguing that such votes should count. The court decided that question in favor of Dascola on July 22.

Since that July 22 ruling, the city has sent Ward 3 voters a letter clearly stating that votes in the Ward 3 race will not count if they are cast only on a misprinted ballot.

The prior court ruling on the city charter requirements, handed down May 20, 2014 had held that the city charter’s eligibility requirements are not enforceable. So 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.