Testimony Underway in San Diego Election Case

The city’s bitterly contested mayoral election entered the courtroom arena Monday, with lawyers clashing over whether the November victory of Mayor Dick Murphy should be overturned because 5,551 ballots were excluded from the final tally.

Following an election that drew 455,000 voters, the trial will focus on the potentially decisive ballots in which people wrote the name of write-in candidate Councilwoman Donna Frye, but failed to fill in the oval next to her name.

“People do weird things.... You get a lot of oddities.... Not everyone is able to or has the time to follow the instructions,” said Fredric Woocher, an attorney for Frye’s supporters who filed the lawsuit.

Murphy’s attorney, Bob Ottilie, said that although the intent of those voters was clear, they had not followed the state requirement that the bubble be filled in next to a write-in candidate’s name.

“We know what these people intended to do.... It makes no difference,” Ottilie told San Diego County Superior Court Judge H. Michael Brenner.

The dueling election law principles -- voter intent versus compliance with the rules -- is expected to remain the focus of the trial.

As testimony began, copies of the ballots in question, packed into two cardboard boxes, were wheeled into the downtown courtroom. Among those expected to testify are some of the people who cast those ballots.

In opening statements, Woocher said that people who voted for her had been disenfranchised, in part because county election officials were inconsistent in how they determined voter intent.

The November election marked the first time that optical scanning equipment was used to count votes in a mayoral race. Any ballot that didn’t have a filled-in oval was kicked back as incomplete. Many of the ovals on the rejected ballots had been checked or partially darkened.

Woocher said that the county’s registrar of voters, Sally McPherson, treated the incomplete ballots differently. On those for Murphy, election officials filled in the incomplete ballots and added them to his total, he said. They did not do the same for ballots cast for Frye, Woocher said.

Such treatment violates the equal protection clause in the Constitution, Woocher said. He also said the election should be overturned because the city’s laws don’t require voters to darken the oval next to a write-in candidate’s name.

McPherson testified that her decisions were guided by state laws. Ottilie, Murphy’s attorney, said that more than “100 years of California jurisprudence” supported her position.

“Time and time again, California Supreme Courts ... have said, ‘Do not count the vote if cast in a manner not prescribed by law,’ ” Ottilie said.

McPherson also testified that sample ballots mailed to voters before the election did not include instructions on how to vote for a write-in candidate.

Instructions posted at the polling places, she said, consisted of one sentence regarding the write-in candidates, which was to fill in the bubble next to the name.

Woocher suggested that the instructions could have been easily overlooked in a voter pamphlet of more than 2,000 words.

He urged the judge to include the questioned ballots, saying that results of the manual recount should take precedence over the machine-generated tally.

“The right to vote is too important to say that we’re just going to rely on the machines,” Woocher said.

The legal battle grew out of a manual recount a month after the election. The two-day examination of ballots -- requested and paid for by news organizations and Frye’s supporters -- uncovered 5,547 ballots for Frye on which voters had not darkened the oval. Another count by lawyers Friday upped that total to 5,551.

Murphy, declared the winner by 2,108 votes, would have lost by more than 3,300 had all of Frye’s ballots been included by the registrar of voters.

The trial is expected to be completed this week.