‘Empty Ovals’ Won’t Be Counted

In a major defeat for write-in mayoral candidate Councilwoman Donna Frye on Monday, a judge refused to order that “empty oval” ballots for Frye be counted, despite a claim that such ballots would give her a victory.

Mayor Dick Murphy leads Frye by 2,205 votes, but her supporters insist there are more than 4,000 ballots for Frye that were not counted because voters did not darken an oval on the line where they wrote her name, as required by state law.

The decision by Superior Court Judge Eric Helgesen may spell the end to one of the city’s most improbable candidacies: a write-in effort launched just five weeks before election day by a councilwoman known to many voters primarily as the wife of legendary surfer Skip Frye.

In the moments after the decision, Frye refused to concede. “We know that our flame is flickering a bit, [but] it will not die,” she said.

Frye, a Democrat, referred to her opponents, Murphy and county Supervisor Ron Roberts, both Republicans, as “Mr. Status and Mr. Quo.”

Murphy said he was pleased with the ruling and that, “from the beginning, I’ve simply wanted all parties to follow the rules, rules that were known to everybody before the election.”

Attorneys for the San Diego League of Women Voters had filed a lawsuit in hopes of forcing the county registrar of voters to count the empty-oval ballots. League attorney Karen Getman told Helgesen that the hotly debated election would be credible to voters only if all votes were counted.

But Bob Ottilie, an attorney for Murphy, responded that state election law requires that the ovals be darkened. Helgesen, a retired jurist from Tulare County, sided with Ottilie after a two-hour hearing.

Helgesen refused to order the ballots counted, and although he did not bar the case from going to trial, he said he doubted its assertions would win at trial. Getman told Helgesen she will have to talk to her clients before deciding whether to seek a trial.

Getman had argued that instructions given out by the registrar of voters led to “massive voters’ confusion.”

But Ottilie noted that every ballot had instructions at the top indicating that for a write-in vote to be counted, the oval to the left of the name had to be darkened.

The only document that did not carry such an instruction was a flier given to voters seeking absentee ballots -- although the voters’ guide given to the same voters carried the instruction.

Getman said the empty-oval ballots should be counted because voters were clearly signaling their preference by writing in Frye’s name even if they left the ovals blank.

Frye, 52, owner of a surf shop, entered the race amid near daily news coverage of the city’s pension deficit and declining credit rating.

Her campaign, backed by environmentalists and labor union members, was based on an assertion that Murphy and Roberts were about “business as usual” and not capable of fixing the city’s financial problems.

Unofficial results released Friday by the registrar showed Murphy with 34.5% of the vote, Frye with 34.04% and Roberts with 31.02%.

The registrar of voters has until Nov. 30 to certify a winner. The winner is set to be sworn in Dec. 6.