Tally Shows S.D. Mayor as Winner

Mayor Dick Murphy has outpolled write-in candidate Councilwoman Donna Frye by 2,200 votes in unofficial results released late Friday, but the election remains unsettled until three lawsuits are resolved.

The unofficial tally was released after days of radio talk-show fulmination, national publicity, hand counting by election workers and general angst among the politically involved segment of the local citizenry.

Election officials said all votes have been counted except a small number from military personnel stationed abroad. Murphy took 34.5% of the votes, and Frye 34.04%.

Two lawsuits are attempting to have Frye’s candidacy ruled illegal and seek a new runoff election between Murphy and county Supervisor Ron Roberts, who trailed with 31.02% of the vote.

A third suit seeks to force county Registrar of Voters Sally McPherson to count write-in votes for Frye that have been excluded because voters did not darken the oval on the left of the line where they wrote Frye’s name.

“The only thing hindering us now are lawsuits,” Murphy said after the vote totals were announced. “We hope a judge will rule in our favor quickly so we can get back to the business of the city.”

Although it is unknown how many so-called empty oval votes exist for Frye, her loyalists believe there may be 4,000 to 5,000, enough for her to overtake Murphy’s lead.

Lawyers for the San Diego League of Women Voters on Friday submitted an affidavit from a poll worker making such an assertion.

The election, one of the more unusual in the history of California’s second-largest city, has pitted business leaders who favored Murphy and Roberts against environmentalists and labor union leaders who backed Frye.

Frye’s resume -- surf shop owner, wife of surfing legend Skip Frye -- and her meteoric rise in local politics have brought national attention to what was otherwise a lackluster contest between two Republicans with long years of public service.

Frye, 52, a Democrat, entered the race five weeks before election day. Her write-in candidacy was approved by longtime City Clerk Charles Abdelnour, with no objection from City Atty. Casey Gwinn.

She campaigned on the premise that she could do a better job fixing the city’s financial problems.

She is the only council member to vote against the city’s under-funding of the employee pension plan -- which has a $2-billion deficit. She has often boycotted closed-door meetings of the council.

After Frye appeared to outpoll Murphy and Roberts on election day, two lawsuits alleged that her candidacy was illegal under the city charter, which does not permit write-in candidates in runoff elections.

But a Superior Court judge, brought from Imperial County after local judges were recused, refused to stop the vote-counting and declared, “Let the people’s voice be heard.” A second suit is pending in federal court.

On Wednesday, the League of Women Voters sued to force election workers to count write-in ballots even if voters did not fill in blank ovals next to the line where they had written Frye’s name.

McPherson has refused to count such ballots, citing state law that requires that the ovals be darkened.

Judge Charles Jones, who rejected the suit challenging Frye’s candidacy, was scheduled to hear the League of Women Voters case Monday. The league, which has taken no sides in the race, says it is fighting for the principle that all votes should be counted.

Late Friday afternoon, Murphy’s lawyer filed a peremptory challenge in Superior Court against Jones’ hearing the case. By law, no reason for the challenge needed to be given, and Murphy’s attorney, Bob Ottilie, declined to discuss the matter.

The request was granted. Whether another judge from outside San Diego County could be found to hear the case Monday remained unclear Friday.

Frye had earlier condemned the two suits aimed at disqualifying her, but on Friday declared her support for the League of Women Voters suit.

“I have nothing but admiration and respect for the League of Women Voters and their desire to defend the fundamental right to vote and to have every vote count,” she said.

Ottilie argues that the rule about darkening in the ovals was well publicized -- by the Frye campaign, the registrar and even the League of Women Voters, on its website.

“It seems to me manifestly unfair to try to change the rules now,” Murphy said.

Though state law requires that the ovals be darkened, there is nothing in city election law about ovals, darkened or empty.

Also, the suit contends that some materials distributed to the registrar of voters before the election neglected to mention the oval requirement.

In another high-profile local race, activist attorney and former federal prosecutor Michael Aguirre has beaten Executive Assistant City Atty. Leslie Devaney to succeed termed-out City Atty. Casey Gwinn.