Judge Upholds S.D. Mayoral Election

A judge on Wednesday upheld the November election victory of Mayor Dick Murphy, rejecting 5,551 votes for write-in candidate Councilwoman Donna Frye because people did not fill in the oval next to her name as required by state law.

“I find that [the] election code ... should be given its plain meaning.... That to cast a vote you have to fill in the oval,” said Superior Court Judge H. Michael Brenner from Orange County. “Those votes should not be counted. The challenge fails.”

News of the ruling spread quickly at City Hall, where uncertainty has loomed over civic affairs since Frye’s supporters challenged the election. They argued that the questioned ballots had been improperly excluded from the final tally. Frye would have won the race had they been counted.

At a news conference, Mayor Dick Murphy said: “I would hope that we could now put these legal challenges behind us. It’s time to focus on solving the city’s problems.”

Frye, however, declined to call Murphy the legitimate mayor of San Diego.

“He’s the technical mayor of San Diego,” said Frye, who has yet to concede the election. The voters’ rights were denied, she said.

“It’s going to be difficult to say to people that if you go to the polls and vote, your vote will count. There are going to be a lot of people who say: ‘No, it doesn’t,’ ” Frye said.

If the ruling stands, it would end the quixotic, last-minute write-in candidacy of Frye, a surf shop owner whose maverick style and “surfer chick” status attracted national attention. Murphy, a Republican former judge, was favored by business interests, while Frye gained support from environmentalists and unions.

Fredric Woocher, the attorney for Frye supporters who filed the lawsuit, said he would recommend an appeal.

“There’s too much at stake in terms of people’s rights to leave it up to one judge,” Woocher said.

The ruling came immediately after closing arguments in the three-day trial, in which lawyers and witnesses spent hours examining marked-up, crossed-out and incomplete ballots cast for Murphy and Frye by voters who didn’t follow instructions.

The election marked the first time that the county used optical scanning equipment in a mayoral election. Any ballot with an oval that wasn’t completely blackened was kicked back for evaluation.

Frye supporters charged that the county registrar of voters, Sally McPherson, had treated Frye voters according to different standards in evaluating their intent.

Woocher had held up the uncounted vote of one person who wrote in Frye’s name followed by three exclamation points. And another blocked out Murphy’s name and wrote in Frye’s.

In his ruling, the judge said the intent of write-in voters for Frye was clear but concluded that the rules were meant to be followed. State law requires that voters for a write-in candidate not only fill in the name but darken the oval. Filling in the ovals, the judge said, “requires a small burden on voters.”

“All we’re talking about is how that name gets on the ballot,” he said.

He added that McPherson was “right on the money” in darkening the incomplete ovals of Murphy voters. He said the law allows election officials to correct ballots if voters make an attempt to fill in the oval.

Frye said technology had trumped voters’ rights.

“It seems like it’s more important to make it easy for the machines to read ballots than to find out what voters intended to do,” she said.