Bates Challenge to Vote Outcome Is Turned Down : Election: Judge rules that incumbent’s narrow loss to Cunningham was legal.

Rejecting a claim by defeated Rep. Jim Bates (D-San Diego) that local officials improperly handled ballots in last month’s election, a San Diego Superior Court judge decided Thursday that Republican challenger Randall (Duke) Cunningham beat Bates fair and square.

Judge Jeffrey T. Miller ruled that San Diego County election officials followed proper procedures in verifying the large number of absentee ballots cast in the 44th District congressional race. Dismissing Bates’ claim that invalid ballots might have been tabulated, Miller officially named Cunningham the winner.

In the Nov. 6 race, Cunningham unseated Bates--who had held the 44th District seat since 1982--by a 46%-45% margin. A recount completed Dec. 7 showed that Cunningham, a highly decorated former Navy fighter pilot, defeated Bates by 1,660 votes out of about 108,000 cast.

“I never had any doubt what the ruling would be,” said Cunningham, who had taken notes during the hearing with a stars-and-stripes pen.

Sporting a lapel pin made up of red, white and blue stones shaped like an American flag and displaying a tie tack that read “United States Congress,” Cunningham complained after the hearing that the Bates suit was an annoyance. To the end, Bates “has cost me money, time, anything he can,” Cunningham said.

Bates, who had conceded that the lawsuit was a long-shot bid to reverse in court what happened at the polls, did not attend the hearing. But later Thursday, in a telephone interview, he said the suit had merit.

“We never felt that the suit would turn around the election,” Bates said. “But I did have a lot of supporters who wanted me to follow through with it because there were so many complaints and allegations with respect to the absentee program.”

He said it is unlikely he will appeal.

Bates claimed in his lawsuit that San Diego County Registrar of Voters Conny McCormack violated state law by failing to compare signatures on absentee ballot applications with voters’ original registration records.

The registrar’s office delivered absentee ballots to any applicant whose request listed the same address as that on the original registration affidavit, Bates’ lawyer, Mike Aguirre, told Miller on Thursday.

Then, if and when a ballot was returned, Aguirre said, the registrar’s office compared the signature on the outside of a special identifying envelope, which contained the ballot, to the original registration papers.

The registrar’s office received 34,000 applications for absentee ballots in the 44th District, Aguirre said. About 26,000 were returned, and the registrar’s office said it verified the bulk of those during the hectic week preceding the Nov. 6 election by checking the envelopes, Aguirre said.

The crush of ballots and press of time made the verification procedures suspect, Aguirre said. That, he said, was why state law requires the registrar’s office to check the absentee application--because the registrar has more time to compare that to papers on file. Miller, however, said that, although the election laws require the ballots to be verified, the laws are more flexible than Aguirre contended. Election laws are supposed to be read with an eye toward ensuring voter access to the polls, so the registrar’s office did the right thing by checking the ballot envelopes, Miller said.

“The right to vote should never be taken away by technical and insubstantial code violations,” Miller said.

Miller also said there was “absolutely no evidence” of fraud or “improper conduct” in the election.

Aguirre tried one other tack, noting that the 26,000 mail-in ballots made up about 23% of the about 108,000 votes cast in the race. In contrast, absentee voters cast 6% of the ballots when Bates was first elected in 1982, he said.

Since absentee voting is increasingly popular, the election laws ought to be re-examined to make sure the system safeguards the sanctity and security of an individual’s vote, Aguirre said.

Miller said the better place to take that suggestion was to the Legislature, which writes the laws, not to a judge like himself, who is charged with interpreting what the Legislature says.