Tuesday morning, the Ann Arbor Election Commission met to discuss issues with misprinted absentee ballots for the August primaries, focusing on a motion filed in federal court Monday that seeks to bar the city from counting one of the races on the incorrect ballots.

The ballots, which left off the name of Ward 3 City Council candidate Bob Dascola due to a proofing error, were sent out to roughly four hundred individuals in the ward June 20. After the error was pointed out to the city clerk’s office on June 27, new, corrected ballots were sent out on June 30.

Dascola is running in the Democratic primary against Julie Grand and Sam McMullen. No Republican or independent challengers are currently running for the seat.

On the day the error was discovered, the state Bureau of Elections initially instructed the city clerk’s office that all votes on the first, incorrect ballot except for the Ward 3 City Council seat should be counted if the second, corrected ballot wasn’t returned. However, on June 30 the state reversed its position, instead instructing the clerk to count every vote on the first ballot, including for the Ward 3 seat, if the voter didn’t return a second ballot. Only if a second ballot was returned would the first ballot be discarded.

In a letter to the clerk’s office, Christopher Thomas, state director of elections, cited potential concerns about voter disenfranchisement as rationale for the new decision.

As of a motion filed Monday afternoon, Dascola’s campaign is contesting the state’s revised instructions and asking the court to enjoin the city from counting Ward 3 votes on the incorrect ballots. During the public commentary section of the meeting, Dascola’s attorney Tom Wieder said it is the campaign’s position that a ballot can only be counted as a ballot if it’s an accurate representation of the race, and that the state has not yet presented any legal evidence to prove the opposite.

“It’s a piece of paper that has two names on it but that’s not the contest in this primary,” he said of the original ballot. “To say that you can count votes from a non-contest just doesn’t make any sense as far as we’re concerned.”

City attorney Stephen Postema, one of the commission’s three members along with City Clerk Jacqueline Beaudry and John Seto, Ann Arbor chief of police, said at the meeting that the city will look to the courts for guidance on whether or not the votes should be counted. He added that he considers the issue to be primarily between the state and Dascola, though the lawsuit is filed with the city.

“When I talk about the dispute, there is a dispute between the state and Mr. Dascola as to this interpretation of the counting of the ballots,” Postema said. “The state has clearly weighed in in a manner that (the Dascola campaign) disagrees with, and that’s why the court’s going to rule and of course we will follow any ruling.”

The city attorney’s office has not yet expressed an opinion on whether or not they believe the votes are valid. Postema said the city’s position will be made clear in a response to Dascola’s motion that will be filed with the court this week. He added that the city is still waiting to receive some additional materials from the state about the issue.

Beaudry reported at the meeting that only somewhere between zero and ten voters have returned just a first ballot thus far. She added that her office has also been telephoning affected voters in the area in an effort to reduce that number.

However, margins in City Council Democratic primaries have traditionally been tight — in 2010, current Councilmember Stephen Kunselman (D–Ward 3) won the Ward 3 primary by six votes — and Wieder said especially given how close races have been, the misprinted ballots are a concern for the campaign.

The commission will meet again next week to continue discussing the issue and receive updates on the lawsuit.

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