Frye's Unofficial Margin Widens

By Tony Perry

Dec. 16, 2004 12 AM PT

Times Staff Writer

SAN DIEGO — As an unofficial tally of ballots increased Councilwoman Donna Frye’s lead over Mayor Dick Murphy on Wednesday, attorneys on all sides of the disputed election began planning their legal strategy as voters weighed in on the question central to the contest: When should a vote count?

At the same time, Fredric Woocher, attorney for two Frye supporters, formally asked for a recount of several precincts -- a step closer to filing a lawsuit seeking to overturn the election and have Frye named mayor.

The fact that more voters preferred Frye than Murphy has been topic No. 1 among voters 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 and Woocher’s clients -- uncovered 5,547 ballots on which voters had written in Frye’s name but did not darken an oval on the line next to the name.

The registrar of voters did not include such ballots in the official count.

Even some voters who backed Murphy said the revelation of the two-day tally -- although unofficial and nonbinding -- made Murphy unacceptable 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,” said Barbara Kahn. “You can’t go back now and raise hell.”

Chris White, an accountant, said she was frustrated with the post-election legal wrangling.

“The election process shouldn’t have so many loopholes to keep running back to court,” White said.

But court looks to be 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 the so-called empty oval ballots for Frye should be counted.

Frye had endorsed Aguirre’s candidacy. In effect, Aguirre is opting to take sides in a dispute between two of his clients, an unusual step for a city attorney.

John Howard, a business attorney who believes Frye’s write-in candidacy is illegal, filed a request with the California Supreme Court to order a new runoff between Murphy and county Supervisor Ron Roberts, without Frye.

Howard said the fact that the unofficial tally showed Frye ahead of Murphy made his lawsuit more significant.

“Everybody should be careful what they wish for: They just might get it,” said Howard, a reference to the Frye supporters who wanted a recount to prove that she got more votes than Murphy.

Murphy’s daughter, Kelly, 25, who watched the two-day review process, summed up the effect of all the post-election wrangling.

“We’re tired,” she said. “The Murphy family is tired. Murphy supporters are tired. The city of San Diego is tired. This is never-ending.”

The registrar last week had certified Murphy as the winner over Frye with a margin of 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 seeking to overturn the election, Woocher said the unofficial tally showed the unfairness of the registrar’s decision not to count the un-darkened 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?” he 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 noted 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, insisted that the empty oval ballots were “illegal” and should not be counted.

Backed by his attorney, Bob Ottilie, the mayor said that the write-ins for Frye did not signal the voter’s intention to vote for her, unless the oval was darkened.

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

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

A prevalent view among many political activists and City Hall watchers 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, a political science professor at UC San Diego.

Assemblywoman Lori Saldana (D-San Diego) said it was unacceptable that Murphy was hanging onto the mayor’s job because of the oval rule.

“We now have a mayor by the technicalities, for the technicalities, and of the technicalities,” she said.

But Craig Benedetto, a public relations executive and member of the Greater San Diego Chamber of Commerce board, said Frye should tell her supporters not to file a lawsuit attempting to overturn the election.

“The law seems clear: You have to fill in the ovals,” Benedetto said. “I don’t know what the debate is.”

He said that continuing controversy over the election would undercut the city’s efforts to reform its pension system and whittle down the system’s $2-billion deficit.

The deficit has spawned a series of problems: declining credit ratings by Wall Street, an inability to sell bonds, an investigation by the U.S. attorney’s office and Securities and Exchange Commission, and soured relations between the city and its employee labor union.

“Donna should consider what is best for the city and what’s best for her political career,” Benedetto said. “She could show that’s she serious about this rhetoric about not being just another politician.”

While the number of newly discovered Frye votes has no legal standing, Woocher said he thought it might help persuade a judge to side with the “intent of the voters” against the oval requirement.

In mid-November, a visiting judge from Tulare County turned down a request from the San Diego League of Women Voters to order the registrar to include in the official tally all ballots on which voters had written in Frye’s name but failed to fill in the oval.

Tuesday’s ballot examination process cost $2,000, split between five news organizations and Woocher’s clients. On Wednesday, the cost was $3,000, split between four news organizations and Woocher’s clients.

The Times was among the news groups on both days. The unofficial count is now complete.

Two lawsuits have sought to have the Frye candidacy declared illegal because the City Charter does not permit write-in candidacies. Neither suit has been successful in getting a judge to order a new election between Murphy and Roberts.

But a three-judge panel of the 4th District Court of Appeal, while turning down a request for such an order, indicated that the legal issues of Frye’s candidacy would become pertinent if she appeared to be the winner of the election.

With that in mind, Howard, the Roberts supporter who filed one of the lawsuits asserting that Frye’s candidacy was illegal, filed an appeal Wednesday with the California Supreme Court.

Howard said the suggestion that Frye might win made the issue of what he saw as an egregious violation of the City Charter more significant.

Regardless of what litigation is filed, the city will be a loser, Howard said.

“San Diego has been a relatively harmonious place,” he said. “Yes, we had our controversies, but we came together.

“Now we’re split into camps that don’t trust each other. It’s going to be very hard to get over this.”

Times staff writer Richard Marosi and researchers Rodney Bosch and Maria Lopez contributed to this report.