The city lost both phases of the litigation, which began when the city sought to enforce city charter eligibility requirements against Dascola to prevent him from being a candidate in the Ward 3 city council Democratic primary race. The election was won by Julie Grand in a three-person field that included Samuel McMullen.

The $35,431.75 amount is the total agreed to for the initial phase of the lawsuit on city charter eligibility requirements ($30,731.75), plus half the amount that was agreed to in the second phase, which involved the counting of misprinted ballots ($9,400). The other half of the $9,400 will be paid by the state of Michigan, which intervened in the second phase of the lawsuit. So the total paid to Dascola’s attorney, Tom Wieder, will be $40,132, which includes court costs.

Fees for the initial phase of the lawsuit were settled on June 19, 2014 – at $30,731.75. That total includes attorney fees in the amount of $30,306.25 – which was the result of 93.25 hours billed at an hourly rate of $325. The remainder of that total was $425.50 – costs for filings and document retrieval.

The motion for fees in the second phase of the lawsuit was filed by Wieder on Aug. 19, 2014 and asked for a total of $12,320 based on 30.80 hours of work at $400 per hour. Wieder’s filing parcels out each item of work to either the city or the state or to both jointly. The amount was reduced to $9,400 through back-and-forth among Wieder, the state and the city, with the final settlement splitting the amount evenly between the city and the state. [.pdf of Aug. 19, 2014 motion for fees]

The initial phase of the lawsuit was decided in favor of Dascola on May 20, 2014. At issue were city charter durational requirements on voter registration and residency – that require city councilmembers to be registered to vote in the city and to be a resident of the ward they want to represent for at least a year prior to taking office. Dascola contended he met the residency requirement, but conceded that he fell short of the voter registration requirement. He did not register to vote in the city until Jan. 15, 2014. The court ruled that the requirements were not enforceable, because they’d been ruled unconstitutional in the early 1970s, and never re-enacted by the city. Dascola submitted sufficient signatures to qualify, so the impact of the ruling was that Dascola was supposed to appear on the Ward 3 ballot.

However through a series of errors, his name did not appear on the printed ballots and nearly 400 of the misprinted ballots were sent to Ward 3 absentee voters. A dispute arose over how ballots would be counted if someone did not return one of the replacement ballots. The state of Michigan intervened on behalf of the Bureau of Elections, which told the city to go ahead and count the ballots. But on July 22, 2014 the federal court ruled that such ballots should not be counted.

The kind of city charter eligibility requirements that triggered the lawsuit in the first place should not become an issue in the future, if Ann Arbor voters approve charter amendments that the city council has voted to place on the Nov. 4, 2014 ballot.

City council races were actively contested in only three of Ann Arbor’s five wards in the Democratic primary: Ward 1 (orange), Ward 2 (green) and Ward 3 (teal).

November will see at least three newcomers to the 11-member council – Kirk Westphal in Ward 2, Julie Grand in Ward 3, and Graydon Krapohl in Ward 4. Westphal and Grand won their respective Democratic primaries that featured no incumbents. Both candidates were coming off unsuccessful council campaigns last year – against Jane Lumm (Ward 2) and Stephen Kunselman (Ward 3), respectively.

Westphal received 1,819 votes (59%) to Nancy Kaplan’s 1,261 (41%) in a race that was anticipated to be somewhat closer. Grand received 1,516 votes (51.1%) compared to Bob Dascola’s 794 (26.8%) and Samuel McMullen’s 616 (20.8%). That gave a decisive result to a Ward 3 race that had been fraught with legal disputes – about Dascola’s eligibility to appear on the ballot in the first place; and then about how to count misprinted absentee ballots, which omitted Dascola’s name.

Krapohl’s race did not even appear on the Aug. 5 ballot – because he was unopposed in the Democratic primary and no Republican qualified for the ballot. The omission of the race from the ballot under those conditions is stipulated in a clause of the city charter.

Krapohl will be filling the seat to which Democrat Margie Teall did not seek re-election. Westphal will almost certainly be filling the Ward 2 seat that Sally Petersen left to pursue an unsuccessful mayoral campaign. And Grand will almost certainly be elected to fill the seat vacated by Christopher Taylor, who ran a successful campaign for mayor.

Taylor, who’s currently a councilmember representing Ward 3, will be the Democratic nominee in the Nov. 4 general election against independent Bryan Kelly. Assuming Taylor does prevail, he will remain on the council as mayor. And among the 10 councilmembers who represent one of the five wards, he’ll almost certainly see a total of seven returning faces, including the two incumbents who prevailed in the Aug. 5 primaries.

That’s because those two incumbents, like the new Democratic council nominees, will also be unopposed on the November ballot. First-term Ward 1 councilmember Sumi Kailasapathy prevailed over Don Adams, who was seeking elected office for the first time. Kailasapathy received 1,113 votes (56.8%) compared to 840 (42.8%) for Adams.

And first-term Ward 5 councilmember Chuck Warpehoski prevailed over Leon Bryson, who had announced he was withdrawing from the race after the deadline to remove his name from the ballot. Bryson still collected 674 votes (18.6%), but Warpehoski’s total was 2,936 (81%).

Those three newcomers and two incumbents will join the five councilmembers who are currently in the middle of their two-year terms: Jane Lumm (Ward 2), Jack Eaton (Ward 4) and Mike Anglin (Ward 5) – as well as Sabra Briere (Ward 1) and Stephen Kunselman (Ward 3), who were unsuccessful in their mayoral bids.

Below are some maps illustrating the geographic distribution of votes in the three actively contested city council races, as well as some limited analysis of the Ward 2 race in terms of questions that were part of a pre-election poll conducted by Public Policy Polling.

Ward 1 Maps

In the Aug. 5, 2014 Democratic primary, first-term Ward 1 councilmember Sumi Kailasapathy prevailed over Don Adams, who was seeking elected office for the first time.

Maps are shaded by precinct based on the percentage of votes received by each candidate. Kailasapathy’s percentages are shown in red; Adams’ percentages are shown in blue.

Kailasapathy received 1,113 votes (56.8%) compared to 840 (42.8%) for Adams. That’s a similar percentage breakdown to the 2012 Democratic primary race that Kailasapathy won against Eric Sturgis. In the 2012 race, Kailasapathy received 863 votes (58%) compared to 628 (42%) for Sturgis.

Kailasapathy lost one precinct to Adams – Precinct 1-10. The tally there was 273 for Adams compared to 211 for Kailasapathy. That precinct includes Arrowwood Hills Cooperative Housing, where Adams lives.

When The Chronicle dropped by the Precinct 1-10 polling station on its Election Day tour of the polls, Adams indicated he’d be spending the whole day at that precinct, saying “This is my family.”

In the color-shaded maps that are included in this article, Precinct 1-10 stands out in the central northern part of the ward.

In 2012, Kailasapathy was not as strong in Precinct 1-10 as she was in other parts of Ward 1, but still prevailed there against Sturgis. That year she lost a different precinct to Sturgis – Precinct 1-5, just to the south of Precinct 1-10 – by a tally of 123 to 157. That precinct was the home precinct of Sturgis. This year she prevailed there against Adams – by a tally of 177 to 136. Sturgis worked for Kailasapathy’s campaign this year.

Ward 1 Maps: Adams

Ward 1 Maps: Kailasapathy

Ward 2 Maps

In the Ward 2 city council race, Kirk Westphal received 1,819 votes (59%) to Nancy Kaplan’s 1,261 (41%) in a primary that was anticipated to be somewhat closer.

Westphal currently serves on the city planning commission, with a term ending in July 2015. In November each year, the city council makes an annual appointment from its own members to the planning commission – a position currently held by Sabra Briere (Ward 1). Regardless of how the council handles that appointment this year, an additional appointment will need to be made to the planning commission from the citizenry at large – to fill the spot that Westphal will be giving up to serve on the council.

Ward 2 precincts color-shaded according to percentage of the vote received: Westphal (blue) and Kaplan (red).

Westphal’s decisive margin in the Aug. 5 primary – of nearly 3 to 2 – saw Kaplan receiving about the same percentage of the vote as Westphal did last year in the 2013 November election in Ward 2 – a race in which Jane Lumm prevailed.

One of the two precincts Westphal won that year was percentage-wise especially strong for him this year against Kaplan – Precinct 2-1 in the middle of the ward. In 2-1, Westphal received 73% of the vote this year. But it was comparatively lightly voted – with the actual tally just 77 to 28 votes. The neighboring Precinct 2-8, just to the west of 2-1, was also nearly as strong for Westphal percentage-wise at 68%, but offered a much greater plurality. The tally was 289 to 136.

Kaplan did not win any precincts. The sparsely voted 2-2 was split three votes apiece for both candidates. Kaplan’s home base of support in the southern part of the ward near Huron Hills golf course delivered the closest meaningful total for Kaplan – at 48%. Kaplan had campaigned in part on her participation in an effort a few years ago to defend Huron Hills golf course from a future that’s different from its status as a public park.

Ward 2: Poll Question Breakdown

Westphal had campaigned in part by contrasting himself with Kaplan with respect to three points: (1) attitude toward downtown development (as a planning commissioner, Westphal voted to recommend 413 E. Huron for approval); (2) public transportation (Westphal supported the recent AAATA millage, which was approved by voters in on May 6); and (3) development of rail-based transportation options (Westphal supports investment in a new rail station).

Two of those issues were touched on in a pre-election poll of Ann Arbor voters, which was conducted by Public Policy Polling (PPP). Voters were asked their opinions about recent downtown development and their perceptions of a need for a new train station.

In general, do you support or oppose the increased development being approved and built downtown in recent years?

Do you think Ann Arbor should build a new train station/transit center, or do you think the current train station is adequate?

Base on those poll results, Westphal’s general position on those topics seems to resonate with more Ann Arbor voters citywide than not. A slim majority of Ann Arbor residents think Ann Arbor needs a better train station: The need for a new train station polled at 52%, while the alternate view – that the current station is adequate – polled at 35%. The poll indicated 46% support for the downtown projects that have been approved and built in recent years, and with opposition at 39%.

The poll had 435 respondents citywide, which means that the numbers for each of the individual five wards were fairly small. So conclusions about each ward’s cut of the data would need to be viewed with even more caution than the poll’s overall results.

But the breakout by ward on those two pre-election poll questions showed a great deal more ambiguity amongst Ward 2 voters than among voters citywide. Contentment with the current train station polled two points better in Ward 2 than a perceived need to build a better one – 44% to 42%. And support for recent downtown developments showed a split of 43% to 42%. Westphal’s ultimately successful campaign strategy did not appear to try to straddle the fence on those issues. Those results are presented in Charts 1 and 2 below.

Chart 1: From July 28-29, 2014 pre-election survey of 435 likely Democratic primary voters by Public Policy Polling. Chart by the Chronicle.

Chart 2: From July 28-29, 2014 pre-election survey of 435 likely Democratic primary voters by Public Policy Polling. Chart by the Chronicle.

Also part of the Ward 2 campaign was an explicit association of Westphal with mayoral candidate Christopher Taylor by the Michigan Talent Agenda’s set of endorsements. Westphal and Taylor also shared several donors to their campaigns. To the extent that voters perceived Westphal as similar to Taylor, that may have worked to Westphal’s benefit – because according to the PPP poll, voters have a favorable opinion of Taylor – not just citywide, but also in Ward 2.

Poll respondents were asked a different question about current mayor John Hieftje – related to job performance, as opposed to a favorable or unfavorable opinion of the person. But on that question Hieftje’s approval showed a different pattern from Taylor’s. Both men polled positively citywide, but more Ward 2 voters disapprove of Hieftje’s job performance than approve of it. There’s been a smattering of commentary over the last few years attempting to associate Westphal with Hieftje – based on the fact that it was Hieftje who nominated Westphal to the planning commission. Based on the outcome of the primary, that appears to be an association that is not felt strongly enough by voters to make a difference.

Results by ward on poll questions about Taylor and Hieftje are presented in Chart 3 and Chart 4.

Chart 3: From July 28-29, 2014 pre-election survey of 435 likely Democratic primary voters by Public Policy Polling. Chart by the Chronicle.

Chart 4: From July 28-29, 2014 pre-election survey of 435 likely Democratic primary voters by Public Policy Polling. Chart by the Chronicle.

Ward 2 Maps: Westphal

Ward 2 Maps: Kaplan

Ward 3 Maps

In the three-way Ward 3 race, Julie Grand received 1,516 votes (51.1%) compared to Bob Dascola’s 794 (26.8%), and Samuel McMullen’s 616 (20.8%).

Grand (green), Dascola (red), and McMullen (orange).

That gave a decisive result to a Ward 3 race that had been fraught with legal disputes – about Dascola’s eligibility to appear on the ballot in the first place; and then about how to count some misprinted absentee ballots, which omitted Dascola’s name.

Concern about how to count those ballots – if a voter did not send in a replacement ballot – had been heightened by the fact that Ward 3 has historically featured close races. The 2009 primary race was decided by just six votes, which triggered a recount.

In the end, Grand eked out an actual majority of votes, comfortably outpolling Dascola and McMullen.

That outcome was based in part on Grand’s strength in the two precincts nearest to the center of the city near the Burns Park area – 3-3 and 3-4. Grand’s support in those precincts approached 60%. Grand also won Precinct 3-3 in her race against Kunselman last year, which she narrowly lost overall.

Like last year, Grand was not quite as strong in the mid-outer precincts of 3-8, 3-7 and 3-6, but still had more votes than Dascola and McMullen in every precinct in the ward.

The pattern of Grand’s support in the ward was similar but not identical to that of mayoral candidate Christopher Taylor’s in Ward 3 – his home ward. Precinct 3-6 was the only precinct won by Stephen Kunselman in the mayoral race (his home precinct). Grand still polled 41% there, after losing the Democratic primary to Kunselman last year. Grand had publicly endorsed Taylor in his mayoral race.

Precinct 3-6 was also one of the strongest precinct for Bob Dascola – among those precincts with a significant turnout. Dascola had publicly endorsed Kunselman in his mayoral race.

In the 2013 primary, Grand had also won Precinct 3-5 in the south of the ward. And that precinct was one of her stronger precincts again this year. Grand received nearly 58% of the vote in that precinct.

McMullen’s strongest precinct was 3-7, where he received nearly 28% of the vote. That’s the home neighborhood of Jeannine Palms, a long-time parks and environmental activist who had publicly endorsed McMullen and campaigned on his behalf.

Ward 3 Maps: McMullen

Ward 3 Maps: Dascola

Ward 3 Maps: Grand

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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.

Contributions made to candidates in Ward 1, Ward 2 and Ward 3 council races are plotted based on the address of the contributor. (Image links to sets of dynamic maps by broken down by candidate.)

That’s about $100,000 less than the amount raised by four candidates in the mayoral primary. The filing deadline for pre-primary reports was July 25.

In Ward 4, incumbent Democrat Margie Teall is not seeking re-election and only one candidate is running – Graydon Krapohl. So he did not need to file campaign finance reports. In Ward 5, Leon Bryson announced several weeks ago that he was withdrawing from his challenge of first-term incumbent Chuck Warpehoski. Even though both Ward 5 candidates filed campaign finance reports, this article does not analyze them.

Accounting for more than half of the total amount raised in the other three wards were the two candidates in Ward 2: Kirk Westphal and Nancy Kaplan. Kaplan’s $16,314 was easily more than any other candidate. By way of comparison to recent Ward 2 races, for the pre-primary campaign period in 2011 and 2013 Jane Lumm raised about $19,000 and $20,000 in those respective years. Westphal raised $12,420 this year, which is about $2,000 more than he raised during the comparable period in his unsuccessful 2013 campaign against Lumm. Westphal and Kaplan are competing for the Ward 2 seat currently held by Sally Petersen. She decided to run for mayor instead of seeking re-election to the Ward 2 seat.

This year’s Ward 3 contest features Julie Grand, Bob Dascola and Samuel McMullen, who are all competing for the seat that Christopher Taylor is leaving in order to run for mayor. Among the three, Dascola raised the most money with $7,385 in contributions compared to $6,595 for Grand and $5,248 for McMullen. (McMullen’s campaign reported a total of $5,315 in itemized contributions, but The Chronicle’s calculation was for $67 less than that, based on the documents.) Grand’s total this year is significantly less than the $10,825 she raised in the comparable period in 2013 for her unsuccessful campaign against Stephen Kunselman.

The Ward 1 race features one-term incumbent Sumi Kailasapathy and Don Adams. Kailasapathy raised $5,345 compared to $4,570 for Adams. Kailasapathy’s amount this year is about $1,000 more than what she raised during the pre-primary period for the 2012 primary, which she won against Eric Sturgis.

While the raw totals provide some insight into how the campaigns are being financed, there’s more to it than that.

Here’s a read-only link to the Google spreadsheet used by The Chronicle to generate charts and maps: [2014 Council Campaign Finance: Ann Arbor] For readers who’d like full-sized versions of the maps embedded below, here’s a link to the Google Fusion tables: [2014 Council Campaign Finance Maps]

Below we present charts and maps to illustrate the distribution of donations by amount and geography.

Charts

Below are frequency distributions of donations grouped by size of the donation. In the last few years, winning campaigns for city council races have been characterized by distributions that skewed toward smaller donations.

Charts: Ward 3

McMullen raised a total of $5,248 from 88 contributions for a mean contribution of $59. The median contribution was $25.

Grand raised a total of $6,595 from 45 contributions for a mean contribution of $146. The median contribution was $100.

Dascola raised a total of $7,385 from 75 contributions for a mean contribution of $98. The median contribution was $50.

Charts: Ward 2

Westphal raised a total of $12,420 from 95 contributions for a mean contribution of $130. The median contribution was $100.

Kaplan raised a total of $16,314 from 132 contributions for a mean contribution of $123. The median contribution was $50.

Charts: Ward 1

Kailasapathy raised a total of $5,345 from 51 contributions for a mean contribution of $104. The median contribution was $50

Adams raised a total of $4,570 from 31 contributions for a mean contribution of $147. The median contribution was $100.

Maps

Maps are plotted by location of the person making the contribution.

Ward 3 Maps: McMullen

Contributions to Samuel McMullen’s campaign are plotted in red. Several contributions came from the area south of Washtenaw Avenue in Ward 3 – from the ward’s tip in the pie-shaped wedge to the farther reaches of the ward. But those Ward 3 contributions do not form an obvious concentration in Ward 3. Several of McMullen’s contributions – 35 of 88 contributions –were made by residents outside the city, in other parts of the country. Many of those appear to have been made by family members.

Ward 3 Maps: Grand

Contributions to Julie Grand’s campaign are plotted in yellow. They show a clear clustering toward the tip of Ward 3′s pie-shaped wedge near the center of the city.

Ward 3 Maps: Dascola

Contributions to Bob Dascola’s campaign are plotted in green. Many of Dascola’s contributions come from south of Washtenaw Avenue in Ward 3. But he’s received many contributions from across the city. He received several contributions from north of Washtenaw Avenue, in Ward 2. He also received several contributions from the central western part of the city in Ward 5 as well as the northwest corner of Ward 4.

Ward 2 Maps: Westphal

Contributions to Kirk Westphal’s campaign are plotted in green. The majority of Westphal’s contributions come from Ward 2 – north of Washtenaw Avenue and in the Glazier Way area in the central eastern part of the city. There’s a sprinkling of contributions from other parts of the city as well.

Ward 2 Maps: Kaplan

Contributions to Nancy Kaplan’s campaign are plotted in yellow. Kaplan’s contributions show a heavy concentration in the southern part of Ward 2 – in the Huron Hills area north of Washtenaw Avenue. The central western part of the city (Ward 5) shows a fairly high concentration of contributions as well.

Ward 1 Maps: Kailasapathy

Contributions to Sumi Kailasapathy’s campaign are plotted in blue. Kailasapathy’s contributions are mostly from Ward 1 in the northern part of the city. But she’s also received contributions from the central western part of town (Ward 5).

Ward 1 Maps: Adams

Contributions to Don Adams’ campaign are plotted in purple. Adams received contributions from the Northside area along Pontiac Trail. He also received a sprinkling of contributions from the Burns Park area.

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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.

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.

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.

Excerpt from judge Lawrence Zatkoff’s show cause order, requiring the city of Ann Arbor to demonstrate that it is not in contempt of the court order that disallowed the enforcement of eligibility requirements for city officials against Bob Dascola.

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.

[July 16, 2014 Show Cause Order] [July 16, 2014 Order on Intervention] [.pdf of July 11, 2014 SoS motion to intervene]

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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This meeting is a regular event in the election process, and will include the approval of the list of election workers for the Aug. 5, 2014 primary. The three-member commission consists of chief of police John Seto, city attorney Stephen Postema and city clerk Jackie Beaudry.

Possibly of more interest than the approval of the list of election workers will be an update on proceedings in the pending legal dispute over the way that some misprinted ballots might be counted. Nearly 400 misprinted ballots were sent out to Ward 3 absentee voters.

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. The city has sent replacement ballots to those voters, with a letter of instructions.

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, has 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 has filed a motion to allow that state agency to intervene in the lawsuit, and takes the position that such ballots should be counted. See ”Ann Arbor Ballot Dispute: Michigan Wants In” for Chronicle coverage.

At the election commission’s meeting, an update will also likely be provided on the status of the number of potentially disputed ballots. Votes that could be disputed are those that were cast on misprinted ballots for which a replacement ballot has not yet been received. As of yesterday, July 14, that number stood at 12. Of those 12, successful contact had been made with five of the voters, who indicated they’d be submitting a replacement ballot.

Update: Of the 392 voters who were sent misprinted ballots, 131 have returned correctly  printed replacement ballots. Only 10 misprinted ballots have been received that have not been replaced with a properly printed second ballot. That leaves more than 250 voters who received a misprinted ballot, who have not yet returned any ballot. Beaudry reported at the meeting that in elections with high-interest races  (like this year’s mayoral race), the percentage of returned absentee ballots could be 90% or higher. But she noted that often ballots are not returned until very close to the date of the election. So there’s still an outstanding possibility that a voter could send in a misprinted ballot, without sufficient time to rectify the situation. However, Beaudry reported that procedures are in place to ensure that anyone who turns in a misprinted ballot in person on Election Day will be provided a correctly printed ballot. Efforts are ongoing to make contract with those who have sent in a misprinted ballot. The election workers were all approved.

[.mp3 of July 15, 2014 election commission meeting]

This is a microphone.

The Chronicle plans to broadcast live audio from the event. A live-stream audio player is included below. [Updated: The live stream audio player has been replaced with a set of .mp3 audio files from the event.]

Primary elections take place on Tuesday, Aug. 5, 2014.

All candidates who have qualified for partisan primary ballots are Democrats. No Republicans have filed in any ward. In Wards 1, 2 and 3, the Democratic primary is contested.

The Ward 1 race features one-term incumbent Sumi Kailasapathy and Don Adams, who is seeking elected office for the first time. [Ward 1 Candidate Forum: CTN Broadcast]

The Ward 2 city council race features current chair of the city planning commission, Kirk Westphal, and current trustee on the Ann Arbor District Library board, Nancy Kaplan. [Ward 2 Candidate Forum: CTN Broadcast]

This year’s Ward 3 contest features Julie Grand, Bob Dascola and Samuel McMullen, who are all competing for the seat that Christopher Taylor is leaving in order to run for mayor. [Ward 3 Candidate Forum: CTN Broadcast]

Ward 4 does not offer a contested race. Graydon Krapohl, a Democrat who is currently vice chair of the park advisory commission, is the only person who has qualified for the ballot.

The race in Ward 5 is also uncontested, practically speaking. Leon Bryson, who will appear on the Democratic primary ballot, has announced that he’s withdrawn his candidacy and won’t campaign for the seat. That means that one-term incumbent Chuck Warpehoski is almost certain to prevail in the primary.

Listen to the broadcast from the July 12 forum using the audio player below. 

A comment thread is open. Feel free to use the commenting section to alert us to any technical difficulties.

After the live broadcast, we expect to make the recorded file from the event available for playback at a listener’s convenience.

Two text boxes will appear below the audio player as a way to provide live notes to listeners – for example, the current question that candidates are answering, who is currently talking, or other listener aids. The first box is programmed to force the scroll continuously to the bottom of the text notes file – so that no manual scrolling or refreshing should be required. The second box does not force the view to the bottom of the file.

Below are .mp3 files of candidate responses from the event edited together by ward and sorted by ward:

• Mayor-Support
• Ward-1-Affordable-Housing-Sumi-Don
• Ward-1-Closing-Sumi-Don
• Ward-1-Crosswalk
• Ward-1-Differ-Don-Sumi
• Ward-1-Intro-Sumi-Don
• Ward-1-Library-Lot-Sumi-Don
• Ward-1-Marriage-Equality-Sumi-Don
• Ward-1-Platt-Road-Sumi-Don
• Ward-1-Town-Gown-Don-Sumi
• Ward-1-Traffic-Mix-Sumi-Don
• Ward-1-Transit-Millage-Sumi-Don
• Ward-1-Whole-Ward-Rep-Sumi-Don
• Ward-2-Affordable-Housing-Nancy-Kirk
• Ward-2-Closing-Nancy-Kirk
• Ward-2-Crosswalk-Nancy-Kirk
• Ward-2-Differ-Kirk-Nancy
• Ward-2-Intro-Nancy-Kirk
• Ward-2-Library-Lot-Nancy-Kirk
• Ward-2-Marriage-Equality-Kirk-Nancy
• Ward-2-Platt-Road-Nancy-Kirk
• Ward-2-Town-Gown-Nancy-Kirk
• Ward-2-Traffic-Mix-Nancy-Kirk
• Ward-2-Transit-Nancy-Kirk
• Ward-2-Whole-Whole-Rep-Nancy-Kirk
• Ward-3-Affordable-Housing-Julie-Sam-Bob
• Ward-3-Closing-Julie-Sam-Bob
• Ward-3-Crosswalk-Julie-Sam-Bob
• Ward-3-Differ-Bob-Sam-Julie
• Ward-3-Intro-Julie-Sam-Bob
• Ward-3-Library-Lot-Julie-Sam-Bob
• Ward-3-Marriage-Equality-Julie-Sam-Bob
• Ward-3-Platt-Road-Julie-Sam-Bob
• Ward-3-Town-Gown-Julie-Sam-Bob
• Ward-3-Traffic-Mix-Sam-Bob-Julie
• Ward-3-Transit-Julie-Sam-Bob
• Ward-3-Whole-Ward-Rep-Bob-Julie-Sam
• Ward-5-Warpo

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From left: Bob Dascola, Secretary of State seal, city of Ann Arbor seal.

The motion on behalf of the Secretary of State was filed by the Michigan Attorney General on Friday, July 11. [.pdf of July 11, 2014 motion to intervene]

In-person voting for the election takes place on Aug. 5, 2014. But the point in dispute concerns ballots that were printed incorrectly and sent to absentee voters.  The question of counting votes has arisen because the incorrectly printed ballots omitted 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.

Just a few days after the roughly 400 incorrectly-printed ballots were sent out, the city sent out replacement ballots with a letter of instructions. The city is making additional efforts to contact voters who sent in an incorrectly-printed ballot – to reduce the potential number of ballots that might eventually be in dispute. The disputed question is whether to count any votes in the Ward 3 race that are might cast on an incorrectly printed ballot.

Amid the ballot-counting controversy, the candidates continue to campaign for the seat to represent Ward 3 in the city of Ann Arbor – a ward that has historically seen some close primary races. In 2009, the margin achieved by Stephen Kunselman over the Ward 3 incumbent, Leigh Greden, was just six votes.

All three candidates appeared in a League of Women Voters candidate forum earlier this week. Chronicle coverage in ”Ward 3 Candidate Forum: CTN Broadcast” includes an embedded video player for playing back the forum, along with a transcript in a scrollable text box.

The Ward 3 candidates are also invited to participate in the Ann Arbor Democratic Party city council candidate forum, scheduled for Saturday, July 12 at 10 a.m. at the Ann Arbor Community Center, 625 N. Main St. The Chronicle is planning to provide a live audio feed from that event.

The Secretary of State’s current position is that votes in the Ward 3 race that are cast with the incorrectly printed ballots should still be counted – if no replacement ballot is sent in by the voter. That’s a reversal of the state’s own position taken when the question was first considered. The state is asking the federal court to be allowed as an intervening party, in order to put its arguments in front of the court. The state’s motion to intervene comes after Bob Dascola’s attorney, Tom Wieder, filed a motion at the beginning of the week – on Monday, July 7 – seeking to prevent the city of Ann Arbor from counting Ward 3 votes cast on defective ballots.

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 is beginning to contemplate the steps necessary to make a change to those eligibility requirements.

The city’s response to Wieder’s motion, filed two days later, took no position on the question of how the ballots should be counted. But the entire response brief, including exhibits, runs 49 pages. [.pdf of city of Ann Arbor's July 9, 2014 response] The reply from Wieder on Dascola’s behalf was filed the following day. [.pdf of July 10, 2014 reply brief]

The week began with Wieder’s motion on July 7, the same day that the city council held its regular meeting, on the first Monday of the month. A closed session held by the council that night reportedly included the topic of the ballot counting question.  The following morning, at the July 8, 2014 meeting of the Ann Arbor election commission, city attorney Stephen Postema portrayed the dispute as one between the Secretary of State and Dascola, on which the city was not going to take a position.

At the end of the election commission’s July 8 meeting, it appeared that both Wieder and Postema were not sanguine about the prospects that a ruling could be obtained from the federal court as early as next Tuesday, July 15. That’s when the election commission meets next. They seemed to be hoping for a decision from the court as quickly as a federal court could act – which they did not seem to think was all that quickly.

But the court seems to be handling at least some of the mechanical and logistical issues very quickly, and seems eager to expedite. Later in the day, on July 8, Wieder filed a motion for expedited consideration of his earlier motion, filed July 7 – which asked the court to enjoin the city from counting votes in Ward 3 races, if they are cast with one of the incorrectly printed ballots. And on the same day, the court granted that motion to expedite and ordered a briefing schedule that required the city to respond to Wieder’s motion by 8 a.m. on Thursday, July 10. Wieder’s reply was due at 10 a.m. the same morning. [.pdf of July 8, 2014 motion for expedited schedule] [.pdf of July 8, 2014 order on expedited schedule]

The motion to intervene, filed by the Secretary of State, could slow the pace of the decision. The Secretary of State’s motion to intervene is based on a basic assertion of the right to do so. From the motion:

Under Fed. R. Civ. P. 24(a)(2), “[o]n timely motion, the court must permit anyone to intervene who…claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”

Included in the Secretary of State’s filing is the brief that it would like the court to consider, if it is admitted as an intervening party.  That brief identifies four key questions believed by the Secretary of State to be central to the court’s ruling on Wieder’s July 7 motion:

CONCISE STATEMENT OF ISSUES PRESENTED

1. Whether this Court should abstain from ruling on this matter where there are substantial issues of state law involving the authority of the Secretary of State to issue direction and guidance to the local clerks and there are ongoing efforts to establish coherent state policy?
2. Is Dascola’s claim ripe where: (a) efforts are underway to contact the absentee voters who were sent replacement ballots and (b) where the ballots in question may not determine the outcome, and thus Dascola cannot show that he has yet been injured?
3. Whether voters who returned a ballot that was defective through a printing error should be disenfranchised based on Plaintiff’s assumption of what voters might otherwise have done in the absence of a printing error?
4. Whether under Michigan law, the Secretary of State has the authority to issue direction and guidance to the local clerks without promulgating formal rules?

The initial phase of the lawsuit ended with the court ruling that the city of Ann Arbor’s city charter requirements were not legally enforceable. That initial phase resulted in a settlement of legal fees in the amount of $30,731 to be paid to Wieder. That amount was based on 93.25 hours of work.

Based on records produced to The Chronicle under a Freedom of Information Act request, staff in the city of Ann Arbor’s attorney’s office put in 119.5 hours on the case just during that initial phase – through May 9.

Depending on how the court rules on the current pending motion, additional fees could be awarded.

Updated July 14, 2014: Wieder has filed a response on Dascola’s behalf opposing the Secretary of State’s motion to intervene. [.pdf of July 2014 response by Dascola] The city of Ann Arbor has filed a response concurring with the motion by the Secretary of State to be allowed as an intervening party. There’s also an update in the city’s response on the number of potentially disputed ballots:

As of the City Clerk’s receipt of the mail on July 14, 2014, there currently are only 12 first ballots remaining for which a second replacement ballot has not been received. Concerning the 12 remaining first ballots, 5 of these voters have indicated they will return the second replacement ballot and 1 of these voters indicated he would have his spouse return the replacement ballot. Only 3 first ballots have been received that appear to be dated after July 4, 2014. The ballots being returned are primarily the second replacement ballots. Of the 392 persons who received the second replacement ballots, 121 persons have already returned them. [.pdf of July 14, 2014 city of Ann Arbor motion]

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of local elections. Click this link for details: Subscribe to The Chronicle. And if you’re already voting for The Chronicle, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!