Frye’s Backers File Another Suit Over San Diego Mayoral Election

In the latest challenge to San Diego’s November mayoral election, supporters of Councilwoman Donna Frye filed a lawsuit Thursday seeking to have her declared the winner of the hotly disputed contest.

Frye, a write-in candidate, received more votes than Mayor Dick Murphy, but about 5,500 ballots were excluded from her final tally because voters failed to fill in the small oval next to the write-in line.

The legal action, which had been expected and follows another similar lawsuit filed last week, provides the latest twist in the election saga and ensures that the issue will dominate city politics through at least February. A hearing on the matter should take place within 25 days.

Murphy’s attorney, Bob Ottilie, expressed confidence that the lawsuits would fail, as had another challenge in the past.

State election laws, he said, clearly require voters to fill in the oval so that optical scanning machines can count the votes.

“What’s troubling at this point is that these [legal challenges] don’t go away ... and in every single instance courts have upheld the mayor’s victory,” Ottilie said.

He appealed to Frye and her supporters to end the litigation, which he said was harming San Diego. “Where is the Al Gore of 2004?” Ottilie asked.

Frye, in a prepared statement, said she was “humbled, and grateful” for her supporters’ efforts, and would decide whether to join the lawsuit next week.

“A vote cast must count for something ... and those people who don’t want these votes counted, in my opinion, offend the most fundamental notions of democracy, fairness and morality,” the statement said.

The latest legal skirmish stems from a manual recount a month after the election. The two-day examination of ballots -- requested and paid for by news organizations and Frye’s supporters -- uncovered 5,547 ballots for Frye on which voters had not darkened the oval.

Murphy, declared the winner by 2,108 votes, would have lost by more than 3,300 had all of Frye’s ballots been included by the registrar of voters.

The results heightened the election controversy. Some residents criticize Frye for perpetuating a state of political chaos, but others, including some Murphy supporters, call Murphy a “phony mayor” who won on a technicality.

“We are quite confident that we will prevail in this lawsuit ... and that Donna Frye will be soon mayor of the city of San Diego,” said Fredric Woocher, an attorney for the three residents who filed the lawsuit in San Diego County Superior Court.

Woocher said San Diego’s municipal code allows for all write-in votes to be counted even if the oval is not darkened, a point disputed by Murphy’s attorney, who said that a state law, passed in 1998 to enable electoral officials to use new technologies, trumps local ordinances.

The lawsuit also takes issue with how the votes were handled. The registrar filled in “hundreds, if not thousands” of un-bubbled ballots cast for Murphy and the third candidate, Ron Roberts, but refused to count the un- bubbled ballots for Frye, according to the lawsuit.

Such actions, Woocher said, showed that the registrar was inconsistent in measuring voters’ intent. It would be unjust, he said, not to count votes that were “unambiguous.”

The law on such matters is unclear, election law experts say. A judge will have to weigh two competing principles: intent of voters versus compliance with rules.

The election was marred by lawsuits from the start. Frye’s status as a write-in candidate has been legally challenged. And a challenge filed by the League of Women Voters contesting Murphy’s victory was rejected by a Tulare County Superior Court judge. The current plaintiffs are not bound by the previous ruling.

But Ottilie, Murphy’s attorney, said the new challenge raises claims already rejected by the courts.

“There is literally no authority to support their position,” he said. “This argument has been made and lost.”