San Diego Mayor Takes Lead in Race

Two weeks after election day, Mayor Dick Murphy on Tuesday pulled ahead of write-in candidate Councilwoman Donna Frye, prompting her attorney to raise the possibility of a lawsuit challenging the counting process.

The turnabout is apparently the result of a large number of write-in votes being declared invalid by election workers. In preliminary tallies, all write-in ballots were presumed to be for Frye, the only official write-in candidate.

Many votes apparently have been declared void because ovals next to the line for write-ins were left blank on some ballots. Registrar of Voters Sally McPherson has said the oval must be filled in by the voter for the write-in vote to count; Frye loyalists may challenge that ruling, depending on the final count.

Although 35,000 absentee and provisional ballots remained to be counted, a tally released by McPherson’s office showed Murphy leading Frye by more than 3,200 votes.

The new vote totals marked the first time Murphy has led in his uphill fight for a second term and possibly foretell the end to the improbable story of Frye, the surfboard shop owner referred to by some as a “surfer chick.” For days she appeared to be on the brink of being mayor.

But the latest vote tally showed Murphy with 153,469 votes; Frye, 150,222; and county Supervisor Ron Roberts, 138,311.

Officials said the counting may be done by the end of the week.

Once all the votes have been tallied, Frye could ask for a recount, contesting the rules used by the county registrar to determine whether write-ins are valid. Her attorney, Marco Gonzalez, said a lawsuit is possible.

One legal issue could involve the blank oval on each ballot next to the line for write-in candidates. The San Diego League of Women Voters said it would join any lawsuit aimed at making sure votes are counted, even if the ovals are not filled in.

“The voters’ intent should be the determining factor when tallying the ballots,” said League of Women Voters President Kay Ragan. “Voter confidence in the election process at every level is crucial to our democracy.”

But Murphy called on the league and Frye to repudiate the idea of such a lawsuit, saying the state election code requires the ovals to be darkened.

“We need to follow the election law of the state of California,” Murphy said.

Two lawsuits have already been filed aimed at blocking Frye from becoming mayor.

On Monday, a lawsuit seeking to halt the vote count was rejected by a Superior Court judge on grounds that it should have been filed before the election.

During that hearing, Murphy’s attorney, Robert Ottilie, announced that Murphy had taken the lead in the count -- a boast that was confirmed by the figures released Tuesday. Murphy, Ottilie said, opposes stopping the vote count.

On Tuesday, U.S. District Judge Irma Gonzalez set a hearing for Nov. 30 to hear arguments from opposing attorneys before ruling on a federal lawsuit seeking to keep the election results from being certified.

Both lawsuits allege that Frye was not a legitimate candidate because, although the Municipal Code allows write-in candidates in runoff elections, the City Charter forbids them.

Frye, 52, a Democrat, was elected to the City Council in 2001 and soon gained a reputation as a staunch supporter of environmental measures and an opponent of closed-door sessions of the council. She cast the lone vote against a plan to underfund the city’s pension fund.

With the city caught in the grip of a $2-billion pension deficit -- the worst financial debacle in city history -- her insurgent candidacy caught the imagination of voters.

Frye, owner of a surfboard shop with her husband, surfing legend Skip Frye, registered as a write-in candidate just five weeks before election day.

The vote count has taken so long now that it has become a routine part of life in San Diego.

On Tuesday, a new television commercial began airing showing newspaper headlines about the case and showing pictures of Frye, Roberts and Murphy. A narrator asks: “Why do we need a mayor when we already have a king?”

The commercial is meant to drum up business for “King” Stahlman, a local bail bondsman.