Dascola v. Ann Arbor, City of et al

Filing 42

ORDER granting Post Judgment 29 Motion for Additional Injunctive Relief. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
IN THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT DASCOLA,
Plaintiff,
vs.

Case No. 2:14-cv-11296-LPZ
Hon. Lawrence P. Zatkoff

CITY OF ANN ARBOR and
JACQUELINE BEAUDRY,
ANN ARBOR CITY CLERK,
Defendants,
and
SECRETARY OF STATE RUTH
JOHNSON,
Intervenor-Defendant
________________________________/
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on July 22, 2014
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Currently before the Court is Plaintiff Robert Dascola’s post-judgment motion for
additional injunctive relief [dkt. 29]. The motion is fully briefed. The Court finds that the facts
and legal arguments are adequately presented in the parties’ papers such that the decision process
would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R.
7.1(f)(2), it is hereby ORDERED that the motion be resolved on the briefs submitted without
oral argument. For the following reasons, Plaintiff’s motion is GRANTED.

II. BACKGROUND
The facts of this case have been outlined in great detail, both by this Court and other
information outlets. As previously established, on May 8, 2014, Plaintiff Robert Dascola
(“Plaintiff”) filed an Amended Complaint in this Court, alleging the City of Ann Arbor and Ann
Arbor City Clerk Jacqueline Beaudry (the “Ann Arbor Defendants”) were violating his rights
under the Equal Protection Clause of the Fourteenth Amendment and his rights under 42 U.S.C.
§ 1983. Plaintiff argued that, by attempting to enforce provisions of the Ann Arbor City Charter
that federal courts previously found unconstitutional and void, the Ann Arbor Defendants were
impermissibly prohibiting Plaintiff from running for Councilmember in the Third Ward of the
City of Ann Arbor. On May 20, 2014, this Court entered an opinion and order in favor of
Plaintiff. The Court entered its judgment (“Original Judgment”) the same day. Specifically, the
Court’s Original Judgment stated:
IT IS HEREBY ORDERED that Defendants are permanently enjoined
from taking any action to enforce the provisions of Section 12.2 of the Charter of
the City of Ann Arbor which were declared unconstitutional and void in Daniel J.
Feld, et al v. City of Ann Arbor and Harold Summers, File No. 37342 (E.D. Mich.
1972) and Human Rights Party, et al v. City of Ann Arbor, et al, File No. 37852
(E.D. Mich. 1972) prior to re-enactment.
IT IS FURTHER ORDERED that Plaintiff’s request for Writ of
Mandamus is GRANTED.
IT IS FURTHER ORDERED that Defendants must accept and process
any nominating petitions submitted by Plaintiff and determine his eligibility
without regard to the voided provisions of Section 12.2 of the Charter of the City
of Ann Arbor.
Pursuant to the Original Judgment, the Ann Arbor Defendants allege they accepted and
processed Plaintiff’s nominating petition so that his name would appear on the primary ballot for
the Councilmember election in the Third Ward. On June 25, 2014, however, the Ann Arbor
Defendants mailed absentee ballots without Plaintiff’s name (the “inaccurate ballots”) to 392
2

residents of the Third Ward. The events leading up to this error are covered extensively in the
Ann Arbor Defendants’ response to Plaintiff’s post-judgment motion. The Ann Arbor
Defendants state the following occurred:
The candidates for Ann Arbor elections were placed on a ballot being
prepared by the Washtenaw County Clerk’s office because the ballot contained
city, county, and state races.
Pursuant to established process, the County Clerk’s Office advised the
City Clerk to review the proof ballots and sign off on the ballots . . . Pursuant to
established process, the City Clerk timely reviewed the “proof” ballots for all City
wards. Plaintiff was correctly on the proof ballots.1 Pursuant to established
process, the City Clerk filled out a form and checked that “All races are listed and
candidates’ names are properly rotated.” This form was sent by the City Clerk to
the County Clerk.
After the proof ballots were approved by the City Clerk, the preparation of
the ballot was done by the Washtenaw County Clerk’s office, but for some
unexplained reason the computer programmer or other vendor employed by the
County Clerk’s office deleted all of the City of Ann Arbor races on the ballot.
New proof ballots were produced with this error. This error evidently was caught
by the County Clerk’s office. However, the County Clerk’s office never informed
the City Clerk of this error.
The County Clerk’s office then added the Ann Arbor City races back on
the ballot, but now without the Plaintiff’s name on the ballot for the 3rd Ward
race. This error was not caught by the Washtenaw County Clerk’s Office.
Evidently this new ballot was never checked against the initial proof ballots that
had been approved. When the ballot was “corrected” a second time new proof
ballots were never sent to the City Clerk to review.
The final proof ballots without the Plaintiff’s name on them were then sent
to the Washtenaw County Election Commission for final approval. The Election
Commission consists of the Washtenaw County Clerk, a Washtenaw County
Probate Judge, and the Washtenaw County Treasurer. After discussing and
reviewing the ballots, the Commission voted to approve the ballots on June 9,
2014.
The County Clerk’s Office evidently did not inform the Washtenaw
County Election Commission of the changes that had occurred on the ballot after
the initial ballots were proofed and the Washtenaw County Election Commission
did not catch the omission of Plaintiff’s name.

1

Plaintiff admits that he also reviewed the proof ballots and that his name did appear on them.

3

After the Washtenaw County Election Commission approved the ballots,
they were sent to the printer; once the ballots were printed they were delivered to
the City Clerk’s office and stuffed into envelopes to be sent to residents who had
requested absentee ballots. On June 25, 2014, [the] Ann Arbor City Clerk mailed
over 1,800 absentee ballots, including 392 absentee ballots to residents in the 3rd
Ward. Upon receipt of an absentee ballot on Friday, June 27, 2014, a 3rd Ward
resident called the City Clerk’s office to inform the City Clerk of the omission on
the ballot. The City Clerk’s office immediately ceased sending the 3rd Ward
absentee ballots.
New ballots were requested by the City Clerk and immediately ordered by
the Washtenaw County Clerk’s office. The second ballots were delivered to the
Ann Arbor City Clerk’s office on Monday, June 30, 2014. On that day, second
ballots were sent to the 392 residents who had been mailed the first ballot along
with a letter explaining the error and requesting that the second ballots be
returned. (internal citations omitted).
This letter (the “instruction letter”) contained instructions for absentee voters in the Third
Ward to destroy the inaccurate ballots they received and to return only these new ballots (the
“accurate ballots”). The instruction letter also advised absentee voters to use the accurate ballots
and return them even if they had already returned an inaccurate ballot. The instruction letter
contained no information regarding whether the Ann Arbor Defendants planned on counting any
votes in the Third Ward race cast on the inaccurate ballots if an accurate ballot was not received.
The instruction letter did state, however, that the Ann Arbor Defendants were working “in
accordance with direction provided by the Michigan Department of State, Bureau of Elections.”
On the same day the accurate ballots and the instruction letter were sent to absentee
voters in the Third Ward, Director of Elections for the Michigan Bureau of Elections Christopher
Thomas sent Defendant Clerk Beaudry a letter containing directions on “the tabulation of absent
voter ballots for Ann Arbor’s Ward 3 City Council candidates in the August 5, 2014, primary”
(the “Directive”). The Directive states:

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Regarding the impact of votes for Ward 3 City Council candidates when an absent
voter returns only the original (incorrect) ballot and does not return the
replacement ballot – those votes are valid and shall be counted.
On July 7, 2014, Plaintiff filed the instant motion, challenging the stance taken by the
Michigan Bureau of Elections and Christopher Thomas in the Directive. Plaintiff requests this
Court enjoin the Ann Arbor Defendants from counting any votes cast for Third Ward
Councilmembers on the inaccurate ballots. Plaintiff asserts that counting any of the votes in the
Third Ward Councilmember election contest cast on the inaccurate ballots would be in violation
of this Court’s Original Judgment and constitutes a further denial of Plaintiff’s right to equal
protection under the Due Process clause of the Fourteenth Amendment.
On July 9, 2014, the Ann Arbor Defendants responded to Plaintiff’s post-judgment
motion, contending that they would take no position on whether the Court should grant
Plaintiff’s request. Instead, the Ann Arbor Defendants allege the dispute is primarily between the
State of Michigan and Plaintiff, as “the Director of Elections has issued a directive to the
[Defendant] City Clerk on this issue and the Secretary of State maintains statutory supervisory
control over local election officials . . . .”
On July 11, 2014, Intervenor-Defendant Secretary of State Ruth Johnson (“the Secretary
of State”) filed a motion to intervene, seeking permission from the Court to intervene in this
matter as a party defendant. The Court granted the Secretary of State’s motion, finding that the
Ann Arbor Defendants had raised a claim or defense predicated on the Directive sent by
Christopher Thomas in his official capacity as an officer of the Secretary of State.
Subsequently, the Secretary of State filed a response to Plaintiff’s post-judgment motion.
The Secretary of State argues that votes in the Third Ward Councilmember primary election cast
on inaccurate ballots where no other ballot is received should be counted. The Secretary of State

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contends that “each absent voter that received the [inaccurate] ballot will also receive [an
accurate] ballot, every voter will have the opportunity to review the [accurate] ballot and
determine whether they wish to revise their vote in light of [Plaintiff’s] name appearing there.”
The Secretary of State contends that to treat the accurate and inaccurate ballots otherwise would
disenfranchise Third Ward absentee voters. The Secretary of State further argues that it has the
authority under Michigan law to issue instructions and to advise and direct local election officials
without promulgating rules. Finally, the Secretary of State contends this Court should abstain
from determining a “difficult question of state law” and that Plaintiff’s claim is not yet ripe and
thus should not be entertained at this time.
III. ANALYSIS
Prior to analyzing the issue at hand, the Court must address the failure precipitating the
need for such analysis. The Court recognizes Plaintiff’s current motion would not be before the
Court but for the Ann Arbor Defendants’ inability to place Plaintiff on the Third Ward primary
election ballot. After the Ann Arbor Defendants and Plaintiff presented a myriad of arguments in
the underlying matter, the Court held that the Ann Arbor Defendants’ attempts to enforce
sections of the Ann Arbor City Charter previously found unconstitutional and void were
inapposite to the basic foundation of the United States legal system. In finding in favor of
Plaintiff, the Court found that Plaintiff’s right to the issuance of a writ of mandamus was clear
and indisputable, stating:
taking into consideration the [Ann Arbor] Defendants’ demonstrated inability (or
unwillingness) to follow the explicit orders issued by federal courts with regards
to the constitutionality of the provisions at issue, the Court finds that issuing a
writ of mandamus is necessary to guarantee Plaintiff receives the relief to which
he is entitled.

6

Whether intentional or otherwise, the Ann Arbor Defendants have once again failed to
follow the explicit orders issued by a federal court. It is with this history in mind that this Court
now turns to the instant motion.
Plaintiff argues that he has the legal right to have his name appear on all ballots used in
the primary election for Third Ward Councilmember for the City of Ann Arbor. Counting any
votes in this election contest cast on inaccurate ballots, Plaintiff asserts, would be in violation of
this Court’s Original Judgment and constitutes a further denial of Plaintiff’s right to equal
protection under the Due Process clause of the Fourteenth Amendment. The Court agrees.
Although the Secretary of State raises four arguments in the alternative,2 the Court finds
none of them convincing. Plaintiff’s argument is the only position consistent with this Court’s
Original Judgment, the United States Constitution and federal legal precedent. The Secretary of
State presents two procedural arguments and two substantive arguments as to why this Court
cannot grant the relief sought by Plaintiff. The Court will address the Secretary of State’s
substantive arguments first, as only these arguments address the merit of Plaintiff’s claims.
A. PLAINTIFF’S REQUESTED RELIEF DOES NOT DISENFRANCHISE ABSENTEE VOTERS
The Secretary of State argues all votes cast on inaccurate ballots in the Third Ward
primary election must be counted. Director of Elections for the Michigan Bureau of Elections
Christopher Thomas stated in the Directive that:
Voters who cast votes in Ward 3 and only return the [inaccurate] ballot cannot
have their votes voided due to the ballot printing error . . . there may be voters
who would not change their vote in Ward 3 or will be out of town and unable to
return the replacement ballot by Election Day. Neither situation can result in the
disenfranchisement of these voters.

2

The Court notes that the Ann Arbor Defendants did not officially take a position in this matter.

7

The Secretary of State attempts to support this stance by asserting “courts” have long held errors
in ballot printing do not disenfranchise voters so long as election workers act in good faith.
Having considered all arguments presented by the parties, the Court finds the
disenfranchisement arguments contained in the Directive and in the Secretary of State’s brief:
a) untenable, supported at best by inapplicable, unpersuasive and non-binding authority, and b)
completely at odds with federal legal precedent.
First, the Court notes that the Secretary of State’s argument inherently seeks to limit this
Court’s authority to enforce its own judgments. “The judicial power is the power to decide, in
accordance with law, who should prevail in a case or controversy.” Young v. U.S. ex rel. Vuitton
et Fils S.A., 481 U.S. 787, 816 (1987) (citing U.S. CONST. art. III, § 2). In the instant matter, this
Court decided the Ann Arbor Defendants’ attempts to enforce provisions found unconstitutional
and void impermissibly violated Plaintiff’s constitutional rights. In doing so, this Court ordered
the Ann Arbor Defendants to accept and process Plaintiff’s nominating petitions without using
these void provisions. The Secretary of State’s position – counting votes cast on ballots that do
not contain Plaintiff’s name – undermines the orders contained in the Court’s Original Judgment.
The Secretary of State provides absolutely no authority indicating the Court should act in such a
way as to render its Original Judgment powerless, and the Court will not do so at this time.
More fundamental to the Court’s decision, however, is the disenfranchisement of voters
that would occur should the Court adopt the Secretary of State’s argument. The United States
Supreme Court established half a century ago that “the Constitution of the United States protects
the right of all qualified citizens to vote, in state as well as in federal elections.” Reynolds v.
Sims, 377 U.S. 533, 554 (1964). The Supreme Court later expanded on this statement, finding
that, “[i]n decision after decision, this Court has made clear that a citizen has a constitutionally

8

protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”
Dunn v. Blumstein, 405 U.S. 330, 336 (1972). Simply put, “[t]he right to vote freely for the
candidate of one's choice is of the essence of a democratic society, and any restrictions on that
right strike at the heart of representative government.” Reynolds, 377 U.S. at 555.
With this precedent in mind, it is clear to the Court that Third Ward absentee voters will
not be disenfranchised by enjoining the Ann Arbor Defendants from counting any “votes” cast
on the inaccurate ballots in the Third Ward primary election. Rather, the Court finds that such an
order would rectify the true act of disenfranchisement that has occurred: the disenfranchisement
caused by the Ann Arbor Defendants when they delivered 392 inaccurate ballots that restricted
Third Ward citizen’s “right to vote freely for” all the candidates in the Third Ward primary
election. Allowing any other result would amount to an act empowering the Ann Arbor
Defendants and the Secretary of State to violate the Third Ward absentee voters’ right to
“participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn, 405 U.S.
at 336; see also Bush v. Gore, 531 U.S. 98, 104–105 (2000) (“Having once granted the right to
vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one
person's vote over that of another.”); League of Women Voters of Ohio v. Brunner, 548 F.3d 463,
476–77 (6th Cir. 2008) (“a citizen has a constitutionally protected right to participate in elections
on an equal basis with other citizens in the jurisdiction.”) (internal citations omitted).
While all parties ostensibly agree that Third Ward residents have the right to vote for
Plaintiff, the Secretary of State nevertheless seeks to count votes cast on ballots where this right
was denied. The Court finds this position embraces the very sort of denial referred to by the
Supreme Court in Reynolds that “strike[s] at the heart of representative government” and would
disparage the “essence of a democratic society.” The Secretary of State’s speculation that

9

absentee voters “may be disenfranchised” should these “votes” not count ignores the simple truth
that the Ann Arbor Defendants’ failure to provide 392 qualified voters with an accurate ballot
has already resulted in disenfranchisement. As Plaintiff correctly articulates, “[n]o voter has the
right to vote in the Julie Grand v. Samuel McMullen Council race shown on the [inaccurate
ballot] because it doesn’t exist. Third Ward voters have the right to vote in the Robert Dascola v.
Julie Grand v. Samuel McMullen Council race.”
Additionally, the Secretary of State provides little support to bolster its argument. First,
the Secretary of State cites only to authority – three Michigan court cases and an Indiana state
appellate decision – that provides no binding precedent to this Court. Further, the insight and
arguments contained in these cases prove inapposite to the case at hand, as all four deal solely
with issues arising from actions that occurred the same day as the election. The instant scenario,
however, presents issues of disenfranchisement starting six weeks prior to election day.3
Applying arguments and rationale – as the Secretary of State asks this Court to do – from cases
where the parties seek to invalidate an election would be inappropriate.
The Court finds that enjoining the Ann Arbor Defendants from counting any votes cast in
the Third Ward primary on inaccurate ballots is necessary to enforce its Original Judgment and
to protect Plaintiff’s rights under the Fourteenth Amendment. Additionally, such action is
required to guarantee the voters disenfranchised by the Ann Arbor Defendants’ mistakes are
given the right to vote freely for any of the three candidates running in the Third Ward primary
election, a right established by the United States Constitution and consistently protected by the
federal judiciary.

3

In distinguishing these two scenarios, the Court recognizes the significant amount of time between the August 5,
2014, primary election and the date the inaccurate ballots were delivered. The Court trusts the Ann Arbor
Defendants and Intervenor-Defendant will use this time to take every action necessary to ensure the inaccurate
ballots do not adversely affect the result of the Third Ward primary election.

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B. THE SCOPE OF THE SECRETARY OF STATE’S AUTHORITY IS NOT RELEVANT
Plaintiff argues that the Secretary of State has no authority to bind – through the
directives of Michigan Bureau of Elections Director Christopher Thomas – the Ann Arbor
Defendants in this matter unless such action is taken pursuant to the Michigan Administrative
Procedures Act (“MAPA”). The Secretary of State argues that it does have the authority to issue
instructions and to advise and direct local election officials, and that this authority is not
provided by MAPA.
The Court finds this argument has no bearing on the issue at hand: whether enjoining the
Ann Arbor Defendants from counting votes cast in the Third Ward primary election on
inaccurate ballots is proper. As established above, the scope of the Secretary of State’s authority
in issuing the Directive does not impact this Court’s ability to protect Plaintiff’s Fourteenth
Amendment rights, to guarantee that absentee voters in the Third Ward primary election remain
enfranchised, or to ensure that the relief granted in its Original Judgment is actually achieved.
As such, the Court finds this argument irrelevant to the present matter.
C. ABSTENTION IS NOT PROPER IN THIS INSTANCE
In addition to the substantive arguments it presents, the Secretary of State also argues
there are procedural grounds barring this Court from granting Plaintiff’s requested relief. The
Secretary of State asserts that this Court should abstain from exercising its jurisdiction in this
case because the “requirements of the Burford abstention doctrine” apply. As the Secretary of
State contends, the Burford4 abstention doctrine establishes that:
[w]here timely and adequate state-court review is available, a federal court sitting
in equity must decline to interfere with the proceedings or orders of state

4

See Burford v. Sun Oil Co, 319 U.S. 315 (1943).

11

administrative agencies: (1) when there are “difficult questions of state law
bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar”; or (2) where the “exercise of federal
review of the question in a case and in similar cases would be disruptive of state
efforts to establish a coherent policy with respect to a matter of substantial public
concern.”
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)
(citing Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976)). As
Plaintiff correctly contends, however, the Supreme Court also recognized “that Burford permits
‘a federal court sitting in equity’ . . . to dismiss a case only in extraordinary circumstances.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 726 (1996) (internal citations omitted).
The Secretary of State contends that any action taken by this Court would constitute
federal interference, disrupting “coordinated administration by the election authorities in
Michigan.” The Secretary of State argues that the question of whether an inaccurate ballot should
be counted where a voter has failed to return an accurate ballot is a unique question of state law.
Additionally, the Secretary of State asserts that whether it has the authority to issue direction and
guidance to local clerks on election administration matters without promulgating formal rules is
an issue of state law that should not be addressed by this Court.5
While the Secretary of State has accurately described the Burford abstention doctrine, the
Court finds that the Secretary of State has failed to demonstrate the instant matter warrants such
abstention. First, the Court notes that the Secretary of State completely ignored the Burford
requirement that federal abstention is appropriate only where “timely and adequate state-court
review” is available. The Secretary of State has provided no information as to whether such
review is indeed available. Further, all the parties in this matter have consistently stressed the

5

As Section B of this Opinion considers and dismisses this state authority argument, the Court will not address it
again here.

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necessity for expedient judicial action from this Court; to now suggest that the “unique state
election matters” presented in this case could be “timely and adequately” reviewed by an
uninitiated state forum prior to the August 5 primary election strikes the Court as disingenuous.
Further, the nexus of the Secretary of State’s argument is that the issue presented –
whether an inaccurate ballot should be counted where a voter has failed to return an accurate
ballot – is a “unique state election issue.” As established above, however, the issue involves
matters of due process rights and the right to vote, both of which are fundamental and protected
rights under the United States Constitution. This case also involves this Court’s inherent ability
to enforce the judgments it renders. As these issues are outcome determinative in this matter, the
Court finds unconvincing the Secretary of State’s blanket statement that this case hinges on a
“unique state election issue.”
Finally, the Secretary of State’s argument that federal review would be “disruptive of
state efforts to establish a coherent policy” is equally unpersuasive. The Secretary of State once
again relies on precedent with no binding authority on this Court. Further, this precedent – one
case from another federal circuit – concerns election law issues that arose after an election
occurred, in stark contrast to the situation presented by the instant motion. The Secretary of
State’s assertions that “federal court intervention”6 would be “disruptive” to any “coordinated
administration”7 by the election authorities in Michigan are supported by no authority or facts;
moreover, the Secretary of State offers no evidence that it is attempting to establish coherent
policy to deal with this issue.8

6

The Court is struck by the fact that the Secretary of State is accusing this Court of “intervening” in state matters
after filing a motion to intervene in this matter.
7
The Court must also recognize that the Secretary of State’s office issued opposing viewpoints regarding the central
matter in this case within the same week. This type of inconsistency does not strike the Court as “coordinated.”
8
The Court encourages the Secretary of State and the Michigan legislature to create such a policy, so that federal
court action may not be required in the future.  

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As such, the Court finds abstention inappropriate in this matter.
D. PLAINTIFF’S CLAIMS ARE RIPE
Finally, the Secretary of State argues that, as efforts are underway to rectify the Ann
Arbor Defendants’ error and the inaccurate ballots may not determine the outcome of the Third
Ward primary election, Plaintiff cannot show that his claim is ripe. This argument is also
unconvincing.
As established recently by the Sixth Circuit in another election law case, federal district
courts have “jurisdiction to hear claims ‘arising under the Constitution’ and alleging
unconstitutional practices taken under color of state law.” Hunter v. Hamilton Cnty. Bd. of
Elections, 635 F.3d 219, 232 (6th Cir. 2011). Further, “[t]he right to vote is protected in more
than the initial allocation of the franchise. Equal protection applies as well to the manner of its
exercise.” Id., at 234 (citing Bush, at 104).
The Secretary of State’s argument is based solely on the premise that there will “likely be
fewer than 10 ballots in question” by the time of the election. The Court finds this figure –
provided by the Ann Arbor Defendants – to be completely speculative. Indeed, this number
represents the number of absentee voters that have to this point “voted” with an inaccurate ballot
and have yet to actually vote with an accurate ballot. This figure does not account for the
hundreds of absentee voters that have yet to vote. As such, these voters have access to both the
inaccurate and accurate ballots delivered by the Ann Arbor Defendants. The number of
inaccurate ballots still outstanding that could be cast most certainly could be outcome
determinative9 in this election and cannot be ignored by this Court.
More fundamentally, however, the logic behind the Secretary of State’s argument is
unsound.

As established above, 392 Third Ward absentee voters have already been

9

As of the writing of this opinion, the Court believes this number to be in excess of 200 votes.

14

disenfranchised by the Ann Arbor Defendants’ delivery of inaccurate ballots; to suggest no
“injury” has occurred is simply incorrect. Further, the Secretary of State provides no authority
supporting its argument that Plaintiff must wait until after the results of the Third Ward primary
election are received to determine whether the Ann Arbor Defendants’ violated his Fourteenth
Amendment rights – and this Court’s Original Judgment – by failing to place him on all Third
Ward primary election ballots.
--As is established above, the Court finds that counting any of the votes in the Third Ward
Councilmember primary election cast on the inaccurate ballots would be in violation of this
Court’s Original Judgment, an act of disenfranchisement, and would constitute a further denial of
Plaintiff’s right to equal protection under the Due Process clause of the Fourteenth Amendment.
Finally, the Ann Arbor Defendants’ failure to place Plaintiff on all Third Ward absentee
ballots – and the Secretary of State’s insistence to nevertheless count “votes” cast on inaccurate
ballots – gives this Court grave concerns over the correct tabulation of all ballots in the Third
Ward primary election for Councilmember in the City of Ann Arbor. As such, the Court finds it
imperative to do everything within its powers to ensure that all votes are accurately counted and
that no more “mistakes” occur with respect to the vote collecting and tallying process.
IV. CONCLUSION
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s
post-judgment motion for additional injunctive relief [dkt. 29] is GRANTED.
IT IS FURTHER ORDERED that Defendants and Intervenor-Defendant are enjoined
from counting any votes cast on inaccurate ballots in the Third Ward Councilmember primary

15

election. This does not impact the ability of Defendants or Intervenor-Defendant to count votes
cast on inaccurate ballots in other primary races.
IT IS FURTHER ORDERED that Plaintiff is awarded all reasonable costs and attorney's
fees.
IT IS FURTHER ORDERED that Plaintiff, the Ann Arbor Defendants and the Secretary
of State each have until 12 p.m. Friday, July 25, 2014, to file with the Court the following
information:
a) What is the basic procedure for counting votes in the Third Ward primary
election (i.e. Where will these votes be counted? Who will count the votes? If
the votes will be certified, who will do so and what is the process for doing
so? 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?);
b) What are the safeguards currently in place to guarantee that all votes are
counted accurately;
c) Do the parties’ believe these are adequate safeguards in this situation to
guarantee that all votes are counted accurately? If not, what other safeguards
should be in place; and
d) Other information the parties’ believe the Court should have to ascertain the
probability that all votes cast in the Third Ward primary election will be
counted correctly.

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Such a filing shall contain specific and accurate support, including pinpoint citations to
authority relied upon, and shall be limited to ten pages.
IT IS SO ORDERED.

Date: July 22, 2014

S/Lawrence P. Zatkoff
HON. LAWRENCE P. ZATKOFF
U.S. DISTRICT COURT

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