A review of disputed ballots showed today that write-in candidate Councilwoman Donna Frye would have beaten Mayor Dick Murphy except for a judge's decision refusing to order the counting of "empty oval" ballots.
In the official results, Murphy beat Frye by 2,108 ballots out of 455,694 cast and was sworn in last week for a second term.
But a review requested and paid for by five media organizations and two Frye supporters showed 4,180 ballots in which voters wrote in Frye's name but did not darken the oval on the line next to her name.
None of those ballots were included in the official tally because state law requires the ovals to be darkened.
Fredric Woocher, attorney for two Frye supporters, said he may file a lawsuit demanding that the votes be added to Frye's total and Frye declared the winner.
A similar lawsuit by the League of Women Voters last month failed to convince a judge that the "intent of voters" is sufficient to override the law's provision requiring the ovals to be filled in. Woocher asserts that voters may not have been sufficiently warned about the oval requirement.
Frye, owner of a surf shop and wife of legendary surfer Skip Frye, joined the race as a write-in candidate just five weeks before election day. She had skipped the March primary in which Murphy and county Supervisor Ron Roberts were the top vote-getters.
The official results of the Nov. 2 election showed Murphy with 157,959 votes, Frye with 155,851, and Roberts with 141,884.
A visiting jurist from Tulare County last month refused a request from the League of Women Voters to require the county registrar of voters to count the votes where Frye's name was written but the oval was left blank.
The league has opted not to appeal Jones' ruling or to seek a trial.
By law, Woocher has until Jan. 7, a month after Murphy was certified as the winner, to file a lawsuit disputing the results.
The requests to examine the uncounted ballots were filed by five news organizations — the Los Angeles Times, San Diego Union-Tribune, KPBS radio and television stations KGTV and KNSD. A similar request was filed by Woocher on behalf of the two Frye boosters.
Under the procedure, county election workers showed the ballots to representatives of the media organizations, observers from the Murphy and Frye campaigns, and employees from Woocher's law firm.
To qualify to examine the ballots, the news organizations had to make their requests on behalf of a registered voter and the voter had to declare an interest in one of the candidates.
The news organizations tallied the votes for Frye. The review of absentee and provisional ballots continued Tuesday and will resume Wednesday.
While doing this, all the organizations quickly swore that their interest was simply to get information for news stories, not to influence the outcome of the election.
The $2,000 cost of the examination was split evenly between Woocher and the five news organizations.
Despite the rejection of the League of Women Voters lawsuit, election law specialists say that a different judge might order the empty ovals for Frye to be included.
Frank Askin, an election law expert at Rutgers law school, said a decision in a similar case in New Jersey concluded that technicalities such as darkened ovals should not stand in the way of votes being counted if the voters' intent is clear.
"If this were in New Jersey," he said, "I'd say these votes were going to be counted."
Rick Hasen, election law expert at Loyola law school in Los Angeles, said a lawsuit by Woocher would have to overcome the objections made by the judge in the League of Women Voters lawsuit.
But Woocher may be in a stronger position than the League of Women Voters because the election has now been certified. A lawsuit will argue that not all the materials distributed by the registrar of voters made clear that the ovals needed to be darkened for the votes to be counted.
"The question is how much knowledge of the process can you require on the part of voters?" Hasen said. "Are you going to disenfranchise people who didn't follow the rules?"
In the weeks before the election, the Frye campaign and the elections department employees held press conferences to emphasize the oval requirement. Frye's campaign material also stressed the need to darken the oval after writing Frye's name.
Frye's last-minute entry into the race quickly gained support from environmentalists and labor union members. She is a Democrat; Roberts and Murphy are Republicans.
After Frye's strong showing on Nov. 2, two lawsuits were filed asserting that her candidacy was a violation of the City Charter and should not have been allowed. The City Charter does not permit write-in candidates in general elections, although the Municipal Code does.
The two lawsuits challenging Frye's candidacy seek to invalidate the election and have a new runoff between Murphy and Roberts. Neither lawsuit has been successful.
Both are on appeal, one in state court, and the other in federal court. A court blocked the certification of the election results while considering one of the suits; that order was lifted last week when the 4th Appelate Court of Appeal decided not to intervene.