San Diego Suit Wants ‘Empty Ovals’ Counted

This city’s razor-close race for mayor, already attracting national attention because of write-in candidate and surf-shop owner Councilwoman Donna Frye, added another complication Wednesday: a court challenge over ballots with “empty ovals.”

A lawsuit filed by the San Diego League of Women Voters asks a judge to force election officials to find and count write-in votes that may have been overlooked because voters did not fill in a blank oval next to their candidate’s name.

How many, if any, write-in ballots fit that category is unknown.

The lack of any indication that such ballots might make a difference in the election fight between Frye and Mayor Dick Murphy is a stumbling block to the lawsuit, according to outside legal experts.

Still, the League of Women Voters says the election’s credibility is at stake unless all possible votes are counted. The league has not taken sides in the campaign but believes the principle is worth defending, officials said.

Although Frye once led Murphy by nearly 4,000 votes, her lead has evaporated over the last two weeks as county election workers have sorted through absentee, provisional and write-in ballots.

Murphy, seeking a second term, now leads by 2,300 votes, with about 20,000 yet to be counted. One reason Murphy has overtaken Frye is that many ballots have been ruled invalid.

County election officials say state law requires that only write-in votes with darkened ovals can be considered. City codes make no mention of ovals.

Only write-in votes with darkened ovals were set aside by computers to be evaluated by election workers for validity. Some of the write-in votes ruled invalid were for other people or cartoon characters -- Mickey Mouse is a favorite -- and others had misspellings that could not be construed as intended to support Frye.

Lawyers for the League of Women Voters say that though there are no court decisions on the oval matter, courts in other voting rights cases have said that such discrepancies should not block votes from being counted.

“The phrase ‘intent of the voters’ is something we all know a bit about, especially after Florida,” said Thomas Willis, a Northern California attorney handling the case.

After the 2000 presidential election, the issue of “hanging chads” in the Florida voting became central to litigation over whether George W. Bush or Al Gore would get the state’s electoral votes.

Murphy’s lawyer, Robert Ottilie, said the league’s lawsuit “is asking the court to compel the registrar of voters to do something she is blocked from doing by law. The law couldn’t be more clear.”

If the lawsuit, filed in San Diego County Superior Court, is successful, election workers would be required to comb through more than 500,000 ballots hunting for write-ins with blank ovals. Whether that hunt would uncover enough Frye votes to overtake Murphy is unknown.

Computers at the county registrar of voters were programmed to set aside only those ballots on which voters filled in the ovals. Only those ballots are being evaluated for validity.

Frye’s campaign is not a party to the suit, but her lawyers had identified the oval issue as a problem even before Nov. 2.

Letters released Wednesday show that the campaign urged Registrar of Voters Sally McPherson to count votes even if the ovals were not darkened. Backed by the county counsel’s legal opinion, she refused.

A week before the election, Deputy County Counsel Dennis I. Floyd wrote to Frye attorney Marco Gonzalez that the county’s hands were tied. He invited Gonzalez to take up the oval matter “with the Legislature or the courts.”

Floyd noted that the California Supreme Court “recently scolded” the mayor and clerk of San Francisco for “taking it upon themselves to ignore a legal mandate” forbidding same-sex marriages.

Gonzalez said Wednesday that the Frye campaign had been concerned that voters would not understand the importance of filling in the ovals.

“The instructions to voters were very ambiguous,” said Gonzalez. “Absentee voters were contacting us before the election, telling us they were confused.”

In her campaign literature, Frye tried to tutor voters on filling in the ovals. She held news conferences to stress the point.

“Over and over in the media, we told voters they had to fill in the bubble and write in the candidate’s name,” McPherson said.

As voters entered polling places Nov. 2, each was handled a paper ballot and a broad-point ink pen. To vote for a candidate, they needed to fill in the oval next to his or her name.

To vote for a write-in, a voter needed to write the name on a specific line and then fill in the oval to the left of that line.

Frye, 52, a Democrat and co-owner of a surfboard shop with her husband, surfing legend Skip Frye, entered the race only five weeks before election day. Her candidacy added color to a campaign that had otherwise been a lackluster contest between two Republicans who had run against each other four years earlier.

The upstart campaign was based on Frye’s assertion that she could handle the city’s pension deficit and other financial problems better than her rivals.

After the total of write-in ballots appeared to put Frye ahead of Murphy and County Supervisor Ron Roberts, activists noted an apparent contradiction between the City Charter, which does not allow write-ins, and the Municipal Code, which does.

Two lawsuits have been filed challenging the legality of Frye’s candidacy. One suit, filed in Superior Court, was largely rejected Monday by a judge recruited from Imperial County after all 124 local judges were recused to avoid the appearance of favoritism toward Murphy, a former judge.

A hearing is set for Nov. 30 in a second lawsuit, filed in federal court.

By law, the registrar has until Nov. 30 to certify a winner in the mayor’s race. The City Charter calls for the new mayor to be sworn in by 10 a.m. Dec. 6.

As opposing lawyers have maneuvered, the vote-counting process has continued apace at the county registrar’s complex, a nondescript warehouse in an industrial park.

County employees, with the help of volunteers, comb through ballots as reporters and lawyers for Murphy and Frye watch. Visitors are not allowed to talk to the workers.

The League of Women Voters’ lawsuit was filed by Remcho, Johansen & Purcell, a firm specializing in election law.

Frederic Woocher, a Santa Monica lawyer specializing in election law, said there have been court cases that would seem to support either side in the case.

Some decisions have required voters to follow ballot rules; others have concluded that the intent of voters should be paramount.

Still others have ordered new elections if officials did not adequately explain the rules to voters, Woocher said.

One problem with the league’s lawsuit, Woocher said, is that no one knows how many votes are at stake and whether those ballots could tip the election. Without such numbers, a judge might be reluctant to intervene.

“It’s very hard to resolve this in the abstract,” Woocher said.