Judge Takes Action in Ballot Suit

The entire San Diego County Superior Court bench was barred Wednesday from hearing a lawsuit attempting to block write-in candidate Councilwoman Donna Frye from becoming mayor.

The decision by Superior Court Presiding Judge John Einhorn to recuse all 124 judges further complicated the already tangled post-election maneuvering in the race.

The judge said he acted because one of the candidates, incumbent Mayor Dick Murphy, was a judge for 15 years before being elected mayor in 2000. Many of the judges have contributed to Murphy’s campaigns. Einhorn said he wanted to avoid even the appearance of favoritism toward Murphy.

Einhorn arranged with California Supreme Court Chief Justice Ronald George to have a retired jurist from Imperial County, Charles Jones, hear the case.

No date has been set for a hearing on the suit, which seeks to have the election nullified. The suit, filed by a prominent San Diego business attorney, alleges that a write-in candidacy such as Frye’s is illegal under the City Charter.

With more than 180,000 ballots yet to be counted, the vote count so far shows Frye with a slim lead.

There are 145,271 write-in votes, the vast majority presumed to be for Frye. Murphy has 142,157 votes, and county Supervisor Ron Roberts is in third place with 128,569. Of the write-in ballots, which must be counted by hand, 66,913 for Frye have been validated.

County officials have declined to say whether any write-in votes counted so far have been for candidates other than Frye.

By law, county Registrar of Voters Sally McPherson has until Nov. 30 to certify a winner in the mayor’s race. Once her employees have finished tallying the write-in votes, they will turn to 110,000 absentee and provisional ballots.

As the votes are counted, the issue of Frye’s candidacy has prompted both the lawsuit and a public disagreement between longtime City Clerk Charles Abdelnour and two-term City Atty. Casey Gwinn over the validity of a write-in candidacy.

Abdelnour gave the go-ahead when Frye launched her campaign five weeks before the election. At the time, the legality of his move was not challenged. Abdelnour now says he acted after Gwinn’s staff members told his staff that the write-in candidacy was permissible. Gwinn says he has no record of his staff members giving such advice.

The mayoral flap comes as the City Council struggles to cope with the worst financial problem in the city’s history -- a $2-billion pension deficit -- and two council members face federal charges of taking bribes from a strip club.

Rick Roberts, a local radio talk-show host, suggested Wednesday that San Diego is becoming the civic equivalent of a clown college. Others seem to agree.

“This is just more proof of how dysfunctional city government has become,” political consultant Cynthia Vicknair said.

The lawsuit filed by John Howard, a Roberts supporter and prominent litigator in San Diego, seeks to stop the registrar from counting absentee and provisional votes and from examining write-in votes for validity.

Howard’s suit alleges that although a 1999 change in the Municipal Code permits write-in candidates, the City Charter does not. Under the charter, the winner of a general election must receive a majority of votes. His suit asks a judge to order a run-off between Murphy and Roberts, without Frye. Both Murphy and Roberts are Republicans. Frye is a Democrat.

Frye and her supporters have reacted angrily.

“It’s an outrage that somebody would want to stop our votes from counting,” Frye told a rally outside City Hall.

“We’re not Florida,” said Judith Italiano, president of the Municipal Employees Assn., who supports Frye. “We don’t want our elections to be decided in court.”