San Diego Vote Saga Continues

In the latest twist in what Mayor Dick Murphy called a civic soap opera, an appellate judge blocked the registrar of voters from certifying Tuesday that Murphy had beaten Councilwoman Donna Frye in his bid for a second term.

The order signed by Presiding Justice David G. Sills came just hours before county Registrar of Voters Sally McPherson was set to declare Murphy the winner by slightly more than 2,000 votes.

Sills ruled that a hearing should first be held on a lawsuit by San Diego business attorney John Howard that alleges Frye’s write-in candidacy was illegal and that a runoff -- without Frye -- should be held between Murphy and county Supervisor Ron Roberts.

Howard’s suit contends the City Charter defines the winner of a general election as the candidate who receives a majority of votes. McPherson, however, was set to declare Murphy the winner with less than a majority, based on rulings by the city clerk and city attorney that Frye’s candidacy was legal.

The order by Sills says a hearing could come Friday at the Santa Ana courtroom of the 4th Appellate District Division 3.

The new mayor is slated to be sworn in Monday during a special session of the City Council. But the city attorney’s office has declared that Murphy can remain mayor while the court challenges are settled.

Murphy told a council meeting that he mentioned the court’s order “just so that you know where the soap opera sits today.” Councilman Jim Madaffer, sitting between Murphy and Frye, had his own description of the machinations: “Comedy Central.”

Frye expressed her frustration at the drawn-out process. Although she has not filed a lawsuit, her attorney has supported a suit aimed at forcing McPherson to count so-called “empty oval” ballots, in which voters wrote in Frye’s name but did not darken the oval on the same line.

“I am trying to protect the public’s ability to support my write-in candidacy and have their votes counted,” Frye said. “It’s just that simple. Unfortunately, it’s gotten a little out of control.” Unofficial results from the county registrar’s office show Murphy with 157,938 votes (34.66%), Frye with 155,851 (34.2%) and Roberts with 141,874 (31.13%).

Frye supporters allege that there are several thousand empty oval ballots, enough to help her overtake Murphy. Frye has declined to concede to Murphy, though the two remain cordial. The registrar has refused to count the empty oval votes because state law requires that the ovals be darkened.

The lawsuit seeking to have those votes counted, filed by the San Diego League of Women Voters, was rejected last week by a visiting jurist from Tulare County. The league decided not to appeal.

Howard’s lawsuit was similarly rejected by a visiting jurist from Imperial County. The visiting jurists were assigned to the cases after all 124 judges on the San Diego County Superior Court bench were recused to avoid the appearance of favoritism toward Murphy, a former judge.

Howard’s client, his law partner Thomas McKinney, decided to appeal.

The lawsuit alleges that the city attorney and city clerk were wrong in allowing Frye to enter the contest as a write-in just five weeks before election day. The suit says the City Charter does not permit write-in candidacies in runoff elections, even though the municipal code does.

Howard asserts that the City Charter should take precedence over the municipal code. Retired Imperial County Judge Charles Jones rejected that idea.

The appeal was shifted from San Diego to Santa Ana when several San Diego justices recused themselves. Concurring with Sills’ order were Justice William Rylaarsdam and Justice Kathleen O’Leary.

Also on Tuesday, a federal judge turned down a lawsuit similar to Howard’s, filed by three supporters of Roberts. U.S. District Court Judge Irma Gonzalez ruled the lawsuit should have been filed before the election; she set a Jan. 10 hearing if the plaintiffs want to appeal.