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.

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]

Ed Golembiewski, chief deputy county clerk and elections director, spoke with The Chronicle by phone and said that corrected ballots were currently being printed and would be provided to the city clerk’s office by noon on Monday, June 30 for mailing. The exact wording of the letter to voters accompanying the corrected ballots was being worked out by the county and city clerk’s offices. Updated at 5 p.m.: According to a followup email and interview with Golembiewski, the language in the letters will be based on a template that will be provided by the state Bureau of Elections. Roughly 400 ballots are being reprinted and re-mailed, Golembiewski said.

Dascola’s name will appear on the corrected ballot, along with those of Julie Grand and Samuel McMullen. In-person voting for the primary will take place on Aug. 5.

Golembiewski indicated that if a voter has already mailed in an incorrect ballot and subsequently mails in the corrected ballot, then their vote on the corrected ballot will be the one that is counted. Clerk’s staff is still reviewing how the scenario will be evaluated if a voter mails in only an incorrect ballot – marked with a vote for Grand or McMullen, or with a write-in vote for Dascola.  Updated at 5 p.m.: According to a followup email and interview with Golembiewski, the state of Michigan’s Bureau of Elections has indicated that if someone mails in only the incorrect ballot, then their Ward 3 vote on the incorrect ballot should not be counted. Their votes in other races, however, should be counted. [.pdf of email from Michigan Dept. of State confirming procedures for handling this situation]

Golembiewski estimated the ballpark cost of reprinting the ballots at around $3,000. Updated at 5 p.m.: According to a followup interview with Golembiewski, the county’s third-party ballot programmer, Government Business Systems (GBS), has expressed some openness to helping to pay for the cost of reprinting ballots. All ballots for Ward 3 will need to be reprinted, including those that were to be used for in-person voting on Election Day.

Golembiewski noted that there’s “a ton of proofing” that goes into checking the ballots. The omission of Dascola’s name stemmed from an extended chain of events that ultimately resulted in the incorrect ballots being sent out.

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 a federal court ruling was made last month on May 20, 2014, 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. But instead of removing the Ypsilanti council races, 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, Golembiewski said, the mistake was missed – by him and 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). A resident who received the incorrect ballot identified the error.

When the clerk’s office was notified on the morning of June 27, Golembiewski said he immediately focused on getting the mistake corrected.

The settlement is reflected in a court document filed by the city of Ann Arbor on June 19, 2014.

That total reflects a reduction from a total of $37,725.50 that Wieder had sought in his motion for award of fees filed with the court on June 6, 2014. [.pdf of motion for fees and accompanying brief] That requested fee award had been based on the same number of hours (93.25) but at the higher rate of $400 per hour.  The argument for the hourly rate is based on various standards cited in the accompanying brief, which include the quality of the results obtained for the client, and the reasonableness of the rate based on Wieder’s experience, skill, and reputation.

The fees agreed to by Wieder and the city of Ann Arbor are to be paid by July 15, 2014.

The ruling of the federal court in Dascola’s lawsuit made on May 20, 2014 by judge Lawrence Zatkoff, was that the city charter eligibility requirements were not enforceable, which put Dascola on the Ward 3 city council Democratic primary ballot for Aug. 5, 2014. He joins Julie Grand and Samuel McMullen on the primary ballot.

The settlement of the fees to be awarded comes after city attorney Stephen Postema reportedly made an effort to convince city councilmembers to direct him to appeal the federal court decision. University of Michigan professor of law Richard Friedman wrote an email to mayor John Hieftje, urging the council to appeal the decision. Friedman felt that the ruling in the case would be overturned on appeal. [.pdf of June 12, 2014 email from Friedman to Hieftje] Hieftje passed the email along to councilmembers.

But a consensus for that direction to appeal the Zatkoff decision was apparently not achieved by the council during two recent closed meeting sessions on the topic – on June 2, 2014 and June 16, 2014.

The ruling from judge Zatkoff was sharply critical of the city’s legal position: “[The city of Ann Arbor has] provided absolutely no authority as to why this Court should simply abandon the basic principles of law that have formed the foundation of the United States legal structure for over two hundred years.”

In the June 6, 2014 filing, attorney Tom Wieder has asked that the court award him fees for 93.25 hours of work at $400 per hour for a total of $37,300. Another $425.50 in costs for filings and document retrieval from the PACER (Public Access to Court Electronic Records) system brings the total amount the city would owe to $37,725.50.

The 93.25 hours of work is itemized in 57 specific increments in spans of time ranging from 15 minutes to 9.75 hours. The number of hours is argued in the supporting brief to be reasonable based on the complexity of the case and the fact that Wieder was Dascola’s sole counsel.

The argument for the hourly rate is based on various standards cited in the accompanying brief, which include the quality of the results obtained for the client, and the reasonableness of the rate based on Wieder’s experience, skill, and reputation. [.pdf of motion for fees and accompanying brief]

What, if any, durational requirements should there be on elected officials? It’s time for the city council to take a step towards establishing legally enforceable eligibility requirements for elected officials.

Even though the immediate issue appears to be resolved, a longer-term question is still open. That’s because the result of the federal court ruling is that the city of Ann Arbor has no legally enforceable eligibility requirements for service as mayor or city councilmember.

Anyone at all is now eligible to serve – even youngsters under 18 years old, who would not even be allowed to vote for themselves in the election – just as long as they submit the minimum number of signatures on nominating petitions.

So it’s time for the council to put a charter amendment on a future ballot that would establish some sort of eligibility requirements for elected officials. The council has a choice about what kind of requirements to put on that ballot for voters to decide.

In broad strokes, I think the eligibility requirements for elected officials should pose only a minimal barrier to the ballot. It would be perfectly adequate if the requirement were something like the following: To be an eligible elected official, a person must be a registered voter in the geographic area the person seeks to represent, from the time that person files their paperwork to qualify as a candidate.

Before making a case that this is a perfectly reasonable and adequate requirement, it’s worth considering how we arrived at a place where the city now has no legally enforceable eligibility requirements for elected officials.

After the city of Ann Arbor informed Dascola that he could not serve as an elected official, because he did not meet city charter requirements, he filed a lawsuit to assert his eligibility to serve. Those charter requirements say a person is only eligible to serve on the city council if the person has been a registered voter in the city and a resident of the ward the person seeks to represent – for at least a year prior to election. 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 of Ann Arbor until Jan. 15, 2014.

But Dascola successfully argued in federal district court that both of Ann Arbor’s city charter requirements were unenforceable – because they had been ruled unconstitutional, null and void in federal court cases dating from the early 1970s. The city had essentially argued that the charter eligibility requirements would be found constitutional, if those 1970s cases were litigated today, based on subsequent case law. But the court ruled that the city needed to legislatively re-enact those city charter requirements, before they could be enforced.

In fact, the ruling this week permanently enjoins the city of Ann Arbor from enforcing those one-year durational requirements before re-enacting them. And that re-enactment would need to take place according to the orderly process called for in Michigan’s Home Rule City Act.

That process is for the city council to decide upon some charter language and then put a ballot question before voters to establish eligibility requirements. This was actually attempted in 2003, but the charter amendment was not approved by a majority of voters. [For more detailed background on that attempt, see: "Ann Arbor's Dumb Old Charter."]

By any objective standard, the 2003 attempt was flawed – for at least two reasons. First, the ballot language mischaracterized the existing wording of the charter. Second, the proposed amendment would have established a requirement for elected officials that a person be registered to vote in the geographic area they sought to represent only at the time they took office.

The proposed 2003 requirement seems so weak as not to be practical. Voters have a legitimate interest in knowing that a candidate who has been qualified for the ballot is also qualified to serve, if elected. If the eligibility requirement is applied only at the point when the person takes office, it’s possible that a candidate might win election and then decide not to register to vote in the appropriate geographic area. That would lead to an outcome where the winning candidate would not be eligible to serve. That kind of scenario is clearly not in the public interest.

The kind of requirement I’ve proposed above would apply a voter registration requirement – with its attendant requirements on age and citizenship – at the point when a candidate files paperwork. It would be an easy fact for the city clerk’s staff to check at that time.

Deadlines for submission of paperwork start in mid-April for the general election in November. So the kind of rule I’m proposing would impose a shorter durational requirement than a year. One year is the span mentioned in the words of the current city charter.

Now, some might argue it’s important that a person be registered to vote in the geographic area they seek to represent for at least one year. And people are free to make that argument – in the context of a democratic election campaign.

For example, if someone thinks that Bob Dascola should not serve as a Ward 3 city councilmember because he has not been registered to vote for at least a year in Ward 3 and should be counted as a carpetbagger, that person is free to make that argument – or any other argument against Dascola – and to urge others not to vote for him. That’s exactly what city planning commissioner Diane Giannola did in a post on her blog, middleoftheleft.com: “I say don’t…don’t vote for [Dascola] if he happens to find his way on to the ballot.”

If the city council is not persuaded I’m right, and believes that a one-year durational voter registration requirement – or some other requirement – is preferable to the one I’ve proposed, then the council should put that different requirement in front of voters.

It’s important for the council eventually to act in some manner, because right now the city of Ann Arbor has no legally enforceable eligibility requirements at all for elected officials. And I don’t think that just anyone should be eligible to step into the center ring of our local governance.

This issue should have been addressed back in 1972 when the federal courts first ruled. And when the attempt in 2003 to establish eligibility requirements was unsuccessful, the city council should have tried again. It’s not necessarily an emergency requiring immediate action, because the ultimate check on eligibility is the election itself.

But now, as long as a lot of people are thinking about this issue, it would be a good time for the council to try again to get this part of the city charter cleaned up.

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From the opinion: “Plaintiff has provided compelling evidence that Defendants have used void provisions of the Charter in an attempt to preclude him from running for City Council. Further, remedies available at law would not compensate Plaintiff for his inability to run for City Council. Finally, as established above, the balance of hardships between the parties – and the public interest at large – warrant this Court enjoining Defendants from enforcing a void law when the City has failed to re-enact that law.” [Dascola v. City of A2: Opinion] [Dascola v. City of A2: Judgment]

Dascola has already submitted sufficient valid signatures to be eligible to appear on the Aug. 5, 2014 Democratic primary ballot, along with Julie Grand and Samuel McMullen.

We will follow up this report with more detailed coverage.

Dascola is seeking to join Julie Grand and Samuel McMullen as a candidate on the ballot for the Aug. 5, 2014 Democratic primary – to represent Ward 3 on the Ann Arbor city council. The city has informed him that he does not meet the city charter’s one-year durational requirements for residency and voter registration. Dascola’s lawsuit is based on two federal cases from the early 1970s that found the charter requirements to be unconstitutional. The city is seeking to enforce the charter requirements based on subsequent case law in other jurisdictions.

For the most recent Chronicle coverage on the substance of the case, see: “Amended Complaint: More Dascola Filings.”

The case is being heard on an expedited schedule, so that ballots can be printed in early June.