Blank bubbles don't count in mayoral race, judge rules

Decision is boost for Murphy, who calls for end to lawsuits

San Diego Union Tribune   23 November 2004

A judge refused yesterday to order the counting of ballots in the San Diego mayoral race in which voters wrote in the name of Councilwoman Donna Frye but neglected to fill in a small oval-shaped bubble next to it.

The decision by retired Judge Eric Helgesen was a crucial victory in a post-election legal battle for Mayor Dick Murphy, who has claimed victory after finishing with 2,205 more votes than Frye in results announced Friday. 

 
The judge ruled against the League of Women Voters of San Diego and two Frye supporters who contended there are thousands of such ballots the San Diego County Registrar of Voters should tabulate.

At a news conference in his office, Murphy said he was "extremely pleased" with the ruling and said it is time to end all election lawsuits. A third suit related to the election is scheduled to be heard in federal court next Tuesday.

"The rules have always been that you must fill in the bubble if you want your vote to count," he said. "Following the rules, following the law is what our society does."

Within minutes of the ruling, Frye read a prepared statement during a break in a City Council meeting. She said she didn't know if she would support an appeal, but added that a lawsuit of her own was "not likely."

"Today, those of us who stand for the proposition that all votes cast should be counted suffered a setback," she said. She did not, however, concede.

"Believe me, when I give a speech about who will be the next mayor, it will be very clear," she said.

After more than two hours of arguments from lawyers for Frye, Murphy, the county and the league, Helgesen ruled that state law prohibits the contested ballots from being counted.

He declined to issue an order requiring registrar Sally McPherson to count the ballots. He said it was unlikely the league would prevail if the case went to trial.

Attorneys for the league said they will review the ruling in the next couple of days before deciding whether to appeal.

McPherson has not said how many of the unfilled, write-in votes there are, but attorneys for Frye and the league said they estimate there are at least 4,000 to 5,000. 

 
The only way Frye could win her upstart write-in bid would be if those ballots were counted and she passed Murphy in the tally.

Karen Getman, the league's lawyer, argued the ballots clearly expressed the will and intent of the voters, and should be tallied. Ignoring those votes would result in disenfranchising thousands of people, she told the judge.

Murphy's lawyers and attorneys for the county on behalf of the registrar countered that the state Elections Code and case law clearly hold that such votes count only if they are properly cast with the bubble filled in.

Getman also argued that the municipal code, which lays out election procedures in San Diego, should be the legal standard in the case. The code allows write-in votes but says nothing about filling in bubbles.

Lawyers for the county and Murphy replied that because the City Council approved combining the city election with the statewide election, the state Elections Code governs the counting. That code has the provision requiring both a written name and a mark in the bubble for a vote to count.

Helgesen came down firmly on the side of the state code. He said consolidating the election "dictates state law would prevail" in unambiguous terms.

"It indicates a write-in ballot would not count if the bubble was not filled in," he said.

He cited a 1982 case from San Bernardino as the key "controlling authority" in the dispute. In that case an appellate court ruled it is not enough to discern the will of a voter, but that intent must be "expressed in the manner proscribed by law."

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Case of the unmarked bubbles

THE ISSUE:

Whether election officials should be ordered to count ballots for Councilwoman Donna Frye on which voters failed to mark a bubble next to where they wrote her name. Frye supporters believe counting those ballots could swing the San Diego mayoral election in her favor.

THE ARGUMENTS:

For: Attorneys for the League of Women Voters and Frye held that the unmarked bubble ballots should be counted because writing Frye's name clearly expressed the intent of the voter and that ignoring them would disenfranchise thousands of voters.

Against: Attorneys for San Diego County Registrar of Voters and Mayor Dick Murphy contended the state Elections Code and case law stipulate against counting such ballots.

THE RULING:

Retired Judge Eric Helgesen found that state law prevails and refused to order the counting of contested ballots. He also held it was unlikely the league or Frye would prevail if the issue went to trial.

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Helgesen served as a Municipal Court judge in Tulare County from 1982 until his retirement 1995. He was appointed to the case after the first judge assigned to hear it, retired Judge Charles Jones, was disqualified when lawyers for Murphy on Friday filed a peremptory legal challenge against him.

By law, no reasons have to be given when such a challenge is filed. Last week, Jones rejected a challenge to Frye's candidacy and refused to halt the vote-counting in a suit brought by a San Diego business lawyer John Howard. At that time lawyers for Murphy did not challenge Jones.

The Superior Court judges in San Diego have been recused by the presiding judge from hearing election litigation in this race to avoid any appearance of bias. Murphy was a judge for 15 years before he was elected mayor.

After the hearing, Robert Ottilie, Murphy's lawyer, urged the plaintiffs not to appeal. "It was clearly the right ruling under the law," he said.

Norma Damashek, vice president for public policy for the League of Women Voters, was clearly disappointed.

"I think the real losers in this decision are the voters of San Diego," she said. "The voters voted, and we don't know who thousands of voters voted for."

Getman told Helgesen: "The issue is whether a little bubble in the ballot should be allowed to disenfranchise thousands of voters."

She said the registrar has been correcting and counting ballots with so-called over-votes in a procedure known as "remaking." Those are ballots where the bubble next to Murphy's name was shaded in, and a voter also wrote-in the mayor's name below, she said.

The registrar, discerning the voter clearly intended to vote for Murphy, is correcting those ballots by whiting-out the write-in vote, she said, which is allowed under the Elections Code.

Getman said that Frye votes in which the bubble was not filled in ? so-called under-votes ? should be counted under the same standard, because the intent of those voters also is clear.

She also argued that more than 137,000 absentee ballots sent out for the race contained conflicting and confusing instructions on how to cast a write-in vote. While the ballots clearly said to darken the bubble, a section of a voter's pamphlet describing how to vote did not mention filling in the bubble.

"Under these circumstances there was clearly voter confusion," she said.

Timothy Barry, a lawyer for the county, defended registrar McPherson and said Getman's allegations were without merit. He said McPherson had no discretion but to follow the state elections law.

Ballots without the filled-in bubble, he said, are ballots that essentially were not legally cast and can't be counted by McPherson.

County lawyers have argued the bubble is important because the optical scanning system machines used for the first time in this election to count votes have to read the mark. Courts have ruled states can employ reasonable rules to allow for an efficient administration of the vote count.

But Getman pressed her argument about the equal treatment of all ballots by seizing on a section in a manual outlining the procedures for counting votes using the optical scanning system.

The section, which she read in court, says that if an absentee voter neither fills in the oval, nor writes in the name of a candidate ? but simply includes a piece of paper with the name of the candidate and mails it in ? that vote will be counted.

Barry said no such votes were cast in the election. But Getman said that to allow counting those ballots ? which do not follow the state law ? and discount the Frye ballots is wrong.