Media’s Role in Mayoral Recount Prompts Claims of Partisanship

When onetime surf shop manager Donna Frye surged to within an eyelash of the San Diego mayor’s office last month, the city’s media had their biggest political story in years.

But the razor-thin vote margin also thrust newspaper and television reporters into an ethical dilemma: How far were they willing to go to examine disputed write-in votes that potentially could tip the contest to Frye?

Three TV stations and two newspapers, including the Los Angeles Times, helped instigate a recount of several thousand ballots last week.

The news outlets said the value of their hands-on review quickly became evident -- uncovering 5,547 ballots on which voters had written in Frye’s name, but had failed to color in an adjacent oval, or “bubble.” If a judge eventually decides the votes must be counted, they could wipe out a 2,108-vote victory for incumbent Mayor Dick Murphy, whose win county officials certified this month.

But the involvement of reporters has drawn a rebuke from Murphy’s lawyer and complaints from some readers and viewers, who claimed that the news outlets had forsaken their journalistic impartiality.

“The feeling is bewilderment, I guess,” said Bob Ottilie, Murphy’s lawyer. “The press financed something -- the recount -- that could change the story. They became the story.”

KPBS-TV Channel 15, the city’s public television station, and its public radio affiliate KPBS-FM (89.5), received about 60 complaints from viewers and listeners who said their donations to the station had been used to advance Frye’s political agenda.

Even within the School of Communication at San Diego State University, experts couldn’t agree on the matter.

Bill Eadie, the school’s director, said the media had fulfilled their “obligation to the public to do whatever it takes, within the realm of legality, to produce information on a matter of great public interest.”

But Tim Wulfemeyer, journalism degree coordinator in the same department, said in an e-mail that the media’s action “smacked of subjective reporting. It appeared [the journalists] were Frye supporters and wanted to help her.”

San Diego’s political elite never would have predicted the saga of the “unbubbled Frye votes” when the 52-year-old city councilwoman belatedly entered the November mayoral election as a write-in candidate against two establishment figures: Murphy and county Supervisor Ron Roberts.

But Frye surprised most local analysts when her stance as a maverick -- and as the only council member who voted against under-funding the city’s pension system -- proved to be popular with voters.

The outcome has remained clouded because -- although state law requires voters to color in the oval next to a write-in vote -- Frye voters say ballots without marked ovals also should be counted.

The League of Women Voters filed a suit attempting to force the San Diego County registrar of voters, Sally McPherson, to count the unbubbled Frye ballots. But a judge rejected that action.

By the time the Murphy victory was certified Dec. 7, The Times, the San Diego Union-Tribune and other news organizations had already requested, under the California Public Records Act, to examine the ballots. But Deputy County Counsel Dennis I. Floyd said that the state Elections Code prohibited public scrutiny of the ballots “except under certain narrow circumstances, including a request for a recount.”

The two newspapers -- along with KPBS, ABC-television affiliate KGTV-TV Channel 10 and NBC affiliate KNSD-TV Channel 39 -- were told there was another wrinkle: Recount requests had to be made in the name of a San Diego voter, who in turn had to ask for the recount in the name of one of the candidates.

Suddenly, a fairly routine journalistic exercise had been cast in starkly different terms. Reporters accustomed to making public records requests in their own names -- and under the rubric of the public’s right to know -- had to name partisan surrogates to get the information they wanted.

The issue provoked varying degrees of debate within the news organizations.

Tony Perry, The Times’ veteran San Diego bureau chief, considered the question fairly straightforward.

“There was no getting around it. This was the only way to get this information that the public really wanted to know,” Perry said in an interview. “It was a mandatory price that we had to pay.”

Perry and managers at two of the other news outlets -- KGTV and KPBS -- agreed to file a joint request for a recount of the contested Frye ballots.

In a request that Perry faxed to the county registrar, the news organizations said they were making the request on behalf of Ann Shanahan-Walsh, a political and media relations consultant who, in turn, “is doing this on behalf of the candidacy of Councilwoman Frye.” The request added: “Nothing in this request should be seen as an endorsement of Councilwoman Frye by the news organizations.”

Deputy Metro Editor David Lauter approved The Times’ request.

“It seemed the most important issue was getting the result,” Lauter said, adding that filing on behalf of a voter and candidate was “a technical requirement of the law and couldn’t be avoided.”

J.W. August, managing editor of KGTV news, said the station decided to enter “uncharted territory” because “San Diegans, even Murphy supporters, wanted to know what happened with this.”

At the Union-Tribune, the decision was taken all the way to Editor Karin Winner.

“We looked at the possibility of going to court to try to get these [ballots] opened as public records, but that might take six months when people are asking the question right now,” explained local government editor Laura Wingard.

Internal debate about whether to proceed with a recount became most intense at KNSD. One news producer and 20-year reporter Gene Cubbison made strong arguments against joining the recount.

“I said we need to ask for the information, and if we can’t get it through the Public Records Act, then we sue someone,” Cubbison said. “We argue only for the right to know, not on behalf of somebody.... I told them, ‘Let’s just bark outside the door, and if that doesn’t work, then let’s kick it in using the Public Records Act.’ ”

All the news organizations were careful to state that their requests should not be construed as endorsements of Frye. But KNSD tried to provide itself with additional insulation from a charge of favoritism by filing its request on behalf of three voters and all three candidates: Murphy, Frye and Roberts.

The attempt partially backfired, the station later conceded, because the Murphy voter it cited in its request had never approved the use of his name to seek a recount.

Murphy supporters say the journalists made another mistake: not halting their recount requests when it became clear that the two Frye voters and their lawyer would have pursued a recount anyway.

“I was very surprised that they didn’t drop it when they realized there were independent voters available to pursue and fund this,” said Ottilie, the mayor’s lawyer. “Why they didn’t is beyond me.”

The journalists answered that a review by the Frye voters and their attorney, Fredric D. Woocher, would still have a partisan taint. The reporters wanted to be able to deliver readers and viewers their own total of the “unbubbled” Frye votes.

The formal recount began Dec. 14 in a county warehouse, with “requesters” from the media and the candidates’ representatives scattered around five tables.

The journalists looked at, but could not touch, the ballots. They noted that most of the voters had written Frye’s full name, though some managed just “Donna.” Two wrote “Donna Fried” and “Donna Frayed.”

The Times’ Perry used a calculator to add the totals from all the tables.

Not long into the second day of the review, the media had produced a number: 5,547 ballots with Frye’s name rendered in some form, but with adjacent ovals unmarked. Because some of the media had not paid (at a cost of $933 for most news outlets) to be part of the recount, Perry had been designated to announce the results.

“We were able to get firsthand information, as opposed to secondhand information that might have come from one of the combatants in the situation,” Perry said.

Although many news consumers, and voters, in San Diego supported the recount, some continued to question the media’s role.

“Recounting the ballots is a ridiculous waste of time and effort,” one letter to the local newspaper said, adding: “If the Union-Tribune has more money than it knows what to do with, reduce the price of the paper.”

The journalists involved in the recount stood by their decision, saying it was up to Frye to decide whether the findings might be used to change the outcome of the election.

Several said they felt required to clarify the number of disputed ballots in light of the disputed 2000 presidential contest.

“We’ve spent the last four years talking about how all the votes need to be counted,” KNSD news director Greg Dawson said. “If there’s still something that appears like it might not allow that, we have to take a close look at it.”