Suit Aimed at Blocking San Diego Candidate

As the laborious work of counting ballots from last week’s mayoral election continued Monday, one of the city’s best-known business lawyers filed suit to block write-in candidate Councilwoman Donna Frye from becoming mayor.

The lawsuit filed in San Diego County Superior Court by John Howard asserts that the city clerk blundered when he allowed Frye to register as a write-in candidate just five weeks before the election between Mayor Dick Murphy and county Supervisor Ron Roberts.

Howard, a Roberts supporter, asserts that the City Charter does not authorize write-in candidates in general elections and that its ban on such candidacies trumps a Municipal Code section that allows them.

“The Charter,” Howard said, “is like the Constitution. It always trumps legislation.”

City Atty. Casey Gwinn, who declined to take the matter to court after Frye’s candidacy was certified by City Clerk Chuck Abdelnour, said the issue “is a very close call.” He said he supports Abdelnour.

In preliminary counting last week, Frye led Murphy by 3,800 votes, but that lead does not include 110,000 provisional and absentee ballots that have yet to be counted.

Also, it presumes that all 135,000 write-in ballots were for Frye and were valid.

Workers at the county Registrar of Voters are examining each write-in ballot to determine whether it is valid, with a correct spelling and the appropriate box inked in. So far, 30,000 have been found to be valid and in favor of Frye.

But no figures have been released indicating how many write-in ballots were for other candidates or were done in an invalid manner. The result is that it is unknown whether Frye’s preliminary 3,800-vote lead has changed.

Registrar of Voters Sally McPherson has said it may take until Nov. 30 before she can declare a winner. The new mayor is set to take office in early December.

Howard’s lawsuit came just hours after Frye held a news conference outside City Hall to blast “postelection shenanigans,” her phrase to describe potential lawsuits seeking to keep her from becoming mayor.

“Let’s call it for what it is,” Frye said. “This has nothing to do with the law. This is sour grapes.”

Frye called on Murphy and Roberts to disavow the idea of a lawsuit.

“I’m calling on them to act like gentlemen,” she said.

Later, each sought to distance himself from the lawsuit. But neither ruled out a court challenge.

“I think we all want to know that a legal election was held,” Roberts said.

Murphy, a former Superior Court judge, told reporters, “In my opinion, it would be best for everyone to complete the vote count before considering legal action.”

Howard said he did not consult with Roberts or any of his clients before filing the suit. He said he was too busy before the election and, like many people in San Diego, was surprised at the strength of Frye’s candidacy.

The lawsuit asks that a judge order the vote counting halted and a runoff election be held between Murphy and Roberts, without Frye.

“I think the city fathers were right in saying that a runoff should be between two candidates, with the winner being the one who receives a majority of votes,” he said. “That provides some sort of mandate for the winner.”

Even if Frye wins, she will receive far less than a majority of votes.

Frye, 52, a first-term City Council member, entered the race as the city’s $2-billion pension deficit became the dominant issue. She was the only council member to vote against an under-funding scheme that has since been criticized as “eccentric” by outside lawyers hired by the city.

Frye was helped by labor unions and environmental groups. She is a Democrat; Murphy and Roberts are Republicans.

Frye’s potential victory has caused concern among business leaders because of her opposition to large-scale land development projects and for any public subsidies to help the San Diego Chargers build a new stadium. Without a new stadium, the Chargers have threatened to leave San Diego.

Carl Luna, political science professor at San Diego’s Mesa College, said he was not surprised that Frye’s strength has brought a legal challenge.

“This is the morning after,” Luna said. “The city had its love affair with Donna, but now two-thirds of the people, who didn’t vote for her, are having second thoughts.”

Howard said his client is one of his law partners. Howard has a long history of involvement in local political matters and was part of a committee that fashioned a “strong-mayor” measure for the ballot, which, so far, is leading.