Six weeks before November 2nd, San Diego City Council member Donna Frye ( threw her hat into the race for Mayor of San Diego as a write in candidate. She won.

Well, technically she won.

However, because of some irregularities with some of the ballots, Republican Dick Murphy was declared the winner. Frye won by at least 2,746 votes, but because not all of the ballots had the bubble next to Frye’s name filled in, the ballots were thrown out. The legal standard is “if the intent of the voter is understood, the vote counts” but that doesn’t fly with the Republicans in San Diego.

Donna Frye is being sued, and people are suing because their votes were not counted. The media (PBS, the LA Times, etc) are doing manual recounts to see exactly who won, and it’s proving Frye did. Even Republicans call the hastily sworn-in Dick Murphy the “illegal mayor”. Will she overcome to lead the 7th largest city in the Nation?

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First review of ballots turns up 4,854 with Frye’s name

Total would elect her mayor if judge ordered them officially counted

By Philip J. LaVelle and Daniel J. Chacon

10:19 p.m. December 14, 2004

More people voted in the San Diego mayor’s race for write-in candidate Donna Frye than for Mayor Dick Murphy, according to a review Tuesday of disputed ballots, but it would take court action for her to be declared the winner.

At the end of a full day of ballot examination, county elections workers at a warehouse in Kearny Mesa had reviewed 4,854 ballots cast for Frye that were not included in the official results of the Nov. 2 election.

Those numbers alone, likely to rise as the ballot review continues Wednesdayday, would put Frye 2,746 votes above Murphy’s official total.

The ballots were disqualified because voters who wrote in Frye’s name did not fill in a corresponding bubble, a requirement of state election law.

The number had been the stuff of conjecture until yesterday when election workers sorted through them by hand as several observers counted them.

News that there are some 5,000 disputed Frye ballots put San Diego into uncharted political territory, with the second-place finisher drawing more voter support than the declared winner.

Murphy brushed off the disputed ballots Tuesday as “illegal votes” and reminded the public that his election victory had been certified.

“To me, it’s clear that I am the legitimate mayor,” Murphy said at a City Hall news conference. “I got the most legal votes. That’s the way it works in America.”

After weeks of legal wrangling, Murphy was sworn in to a second term last Wednesday. The official tally put him 2,108 votes ahead of Frye, a maverick City Council member. County Supervisor Ron Roberts placed third.

Frye said she was troubled that the bubble requirement was standing in the way of thousands of votes being officially counted.

“Let’s face it, this is not a literacy test,” Frye said in an interview. “This is an expression of the intention of the voter. I feel frustrated, and I feel that a lot of people have been disenfranchised on a technicality.”

Frye said she is undecided what action, if any, to take. She has 30 days from the date of the election’s certification, or Jan. 7, to file a legal challenge.

Fred Woocher, a Santa Monica election lawyer who requested a recount on behalf of Frye supporters Gail Rojas and Brian Lawrence, said he wants all disputed absentee and provisional ballots to be tallied before he requests a full recount of select precincts.

He will then announce whether he intends to sue.

“I believe that the person who got the most votes should be elected,” he said Tuesday.

Asked what his intentions were, Murphy lawyer Bob Ottilie said: “I don’t have anything to do. My client won the election, was certified and was sworn in. I’m sleeping well.”

The vote review under way was requested by Rojas and Lawrence, and separately, by The San Diego Union-Tribune, the Los Angeles Times and KPBS, KGTV and KNSD.

The Frye supporters are likely to ask the courts to declare her the winner, on their argument that the will of voters should trump what they call technical aspects of voting such as the bubble requirement. The interest of the news organizations is limited to finding out how many total ballots were cast for Frye.

There have been several lawsuits associated with the election, including one brought by the San Diego League of Women Voters, which sought to have the unbubbled ballots counted. The league lost in court last month and decided not to appeal.

Murphy, a former Superior Court judge, squarely embraced his interpretation of the law Tuesday: “I have no opposition to the public knowing how many illegal votes were cast. The bottom line is that illegal votes don’t count, and everybody knew that you had to fill in the bubble for the vote to count. The registrar of voters has said that repeatedly. The court upheld that. Even Donna Frye knew that.”

The mayor held up a Frye campaign mailer that instructed how to cast a vote for her, including writing in her name and filling in the bubble. He added that he is not convinced that voters who wrote Frye’s name but did not fill in the bubble intended to vote for her.

“I’m not sure we’ll ever know what the intent of those voters were,” he said.

Frye noted that she objected to the bubble requirement to county officials before the election, saying voters would be confused about how to vote on the optical scan ballots. County lawyers wrote back that county Registrar of Voters Sally McPherson could not ignore the law.

The mechanics of how to vote for a write-in became a recurring feature of Frye’s public events. Frye used large blow-ups of a mock ballot to instruct voters how to spell her name, with the admonition to fill in the bubble.

“My job was to try and educate voters,” she said. “I did everything I could to make sure that the instructions that were provided to me were followed.”

A Democrat who often bucks the establishment, Frye entered the contest five weeks before Election Day as a write-in, saying she had met with Republicans Murphy and Roberts individually and found them wanting. Her core theme was open government.

Both men had sought Frye’s endorsement. A surfboard shop owner and noted clean-water activist, Frye’s support was seen as important to attracting voters who place high priority on environmental issues.

Frye was quickly written off by many as having no chance. Her surprise success, albeit falling short of an official victory, captured national and international media attention.

In the official tally, Murphy received 157,959 votes (34.5 percent); to 155,851 (34.2 percent) for Frye and 141,884 (31 percent) for Roberts.

Tuesday’s ballot review began just after 9 a.m., as county election workers unlocked the doors of a chain-link fence in a large storage area in the rear of the registrar’s office in Kearny Mesa and rolled out the first boxes of precinct ballots from the Nov. 2 election.

Workers pushed two carts holding three boxes each to one of five tables. An election worker sat on one side of the table handling the ballots while three to five observers sat on the other side recording the tally on paper.

Reporters, photographers, candidates’ aides and county employees observed nearby.

The registrar’s office, anticipating legal challenges in the mayor’s race, had segregated the unbubbled ballots during the vote canvass, placing them on top of the ballots tallied in the official count.

“This is probably a first, definitely for San Diego,” McPherson, the registrar of voters, said shortly after Tuesday’s tally began.

Less than an hour into the count, Woocher, the lawyer for the Frye backers, said the outcome would be predictable.

“My observation is that Donna Frye got more votes than Dick Murphy,” he said. “You see these ballots and it’s heart-wrenching. There’s no ambiguity.”

Woocher said voter intent was obvious.

“Our democracy is founded on the principle that we don’t let technical errors prevent the people’s will from being given effect,” he said.

Late Tuesday City Attorney Michael Aguirre announced his office will issue an opinion on the bubble issue; a spokeswoman said it may come by next week.

The count proceeded quickly – because most of the ballots in question yesterday were stacked together – in stark contrast to the slow, weeks-long counting of ballots after the election.

When workers and observers took their first break at 10:30 a.m., a tally of ballots from 357 out of the city’s 709 precincts revealed 1,649 ballots for Frye. The remaining precinct ballots were counted by 12:30 p.m., boosting Frye’s tally to 4,180.

At 2 p.m., the count shifted to the 345,000 absentee ballots. About 25 workers started segregating those ballots Tuesdaymorning. They went through about half the absentee ballots Tuesday and by day’s end, Frye’s unofficial tally increased by 674.

There are about 47,000 provisional ballots that also had not been segregated.

Kelly Murphy, the youngest of the mayor’s three children, was a ballot observer and said the past few weeks have been hard on her family. “It’s been trying, that’s for sure,” she said. “We’re tired.”

By walterh

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