San Diego election headed to court

SAN DIEGO -- As an unofficial tally of votes increased Councilwoman Donna Frye's lead over Mayor Dick Murphy, lawyers on all sides of the disputed election began planning legal strategies as voters weighed in on the question central to the mayoral contest: When should a vote count?

Fredric Woocher, a lawyer for two Frye supporters, on Wednesday formally asked for a recount of several precincts -- a step closer to filing a lawsuit to overturn the election and have Frye named mayor.

Voters' preference for Frye over Murphy has been topic number one among residents in the state's second-largest city, edging out talk of a possible Super Bowl appearance by the surging San Diego Chargers.

A two-day examination of ballots -- requested and paid for by news organizations, including the Los Angeles Times, and Woocher's clients -- uncovered 5,547 ballots in which voters had written Frye's name but did not darken the oval on the line next to the name. The registrar did not include such ballots in its official count.

Even some voters who backed Murphy say the disclosure of the two-day tally, although unofficial and nonbinding, makes it unacceptable for Murphy to remain in office.

''Filling in the bubble doesn't matter," said Pat Lecoq, a law firm receptionist. ''Somebody took the time to write her name in. She clearly had the most votes."

But other voters said it would be unfair to Murphy to allow Frye supporters who did not follow the rules to have their votes counted.

''The people who didn't fill in the oval didn't do their job," Barbara Kahn said. ''You can't go back now and raise hell."

Chris White, an accountant, said she is frustrated with the legal wrangling.

''The election process shouldn't have so many loopholes to keep running back to court," White said.

But court is certainly where the dispute may be decided.

Michael Aguirre, a longtime activist who was elected city attorney last month, promised to weigh in with a legal opinion on whether so-called empty oval ballots for Frye should be counted.

John Howard, a business attorney who says Frye's write-in candidacy is illegal, filed a request with the California Supreme Court asking it to order a new runoff between Murphy and county supervisor Ron Roberts, and excluding Frye.

Last week, the registrar certified Murphy as the winner over Frye by 2,108 votes.

Citing state law, the county registrar of voters has refused to include the empty oval ballots in the official results.

While not yet committing to a lawsuit to overturn the election, Woocher said the unofficial tally shows the unfairness of the registrar's decision not to count the undarkened ovals.

''The real issue is: Do we live in a country where people are going to lose their right to vote when their intention is quite clear, but the rules are not?" Woocher said.

Woocher said the rules put out by the registrar before the election were unclear about the need to fill in the oval.

Also, he notes that the registrar was diligent in determining the voters' intent in other cases where Frye's name was misspelled, the oval was checked but not filled in, or the paper ballot was somehow marred or torn.

Murphy, sworn in for a second term last week, insists that the empty oval ballots are ''illegal" and should not be counted.

The mayor insists that simply because a voter wrote Frye's name does not signal the voter's intention to vote for her, unless the oval is darkened.

Murphy supporters acted as observers Tuesday and Wednesday as reporters and representatives from Woocher's law firm examined the ballots.

Under state law, anyone wishing to contest the election has until Jan. 7. Frye has said she will decide in a couple of days whether to file a lawsuit.

A prevalent view among many political activists and City Hall observers is that Murphy's leadership has been severely undermined, even if he remains in office.

''Murphy was a lame duck; now he's an even lamer duck," said Steve Erie, political science professor at the University of California at San Diego.