‘Empty Oval’ Rule Won’t Be Fought

The San Diego League of Women Voters announced Tuesday it will not appeal a judge’s decision not to order that “empty oval” ballots favoring write-in candidate Councilwoman Donna Frye be counted in her photo-finish race with Mayor Dick Murphy.

With unofficial results in the mayoral race showing Murphy leading Frye by 2,200 votes, the empty-oval ballots were widely seen as Frye’s last chance to overtake Murphy.

Murphy said he supported the League of Women Voters’ decision. “I agree with them that it is time to move beyond the election and address the challenges facing the city,” he said.

Although not conceding defeat, Frye said she was disappointed. “I see it as a setback for people who voted,” she said.

On Monday, Superior Court Judge Eric Helgesen, a retired jurist from Tulare County, agreed with Murphy’s lawyer, Bob Ottilie, that state law requires that for their votes to be counted, voters must have darkened the oval next to the space where they had written Frye’s name.

Attorneys for the League of Women Voters had argued, unsuccessfully, that writing her name showed the intent to vote for Frye even if the ovals were empty.

In announcing the league’s decision not to continue the lawsuit, President Kay Ragan issued a statement describing law requiring the darkened ovals as a “technical barrier” that should be eliminated.

The county registrar of voters has until Tuesday to declare a winner. The new mayor is set to be sworn in Dec. 6.

Frye supporters assert there are more than 4,000 empty-oval ballots for Frye, enough for her to beat Murphy.

Two lawsuits challenging the election remain, although neither could help Frye revive her candidacy. Both claim that Frye’s candidacy was illegal because the City Charter does not allow write-in candidates in runoff elections, although they are permitted by the municipal code.

Superior Court Judge Charles Jones, a retired jurist from Imperial County, last week rejected a request from a prominent business attorney to halt the vote counting and order a new election between Murphy and county Supervisor Ron Roberts, without Frye. That ruling is being appealed to the 4th District Court of Appeal.

A similar lawsuit is set for a hearing next week in federal court.