Run for Congress stymied by wrongly marked ballots
By Greg Moran
San Diego UNION-TRIBUNE STAFF WRITER

December 19, 2004

For the candidate ? a maverick outsider mounting a last-minute, write-in campaign ? the elation of election night slowly turned to bitter defeat.

All for the lack of a mark on some ballots.

Scores of voters dutifully wrote down her name and turned in their votes. But because they didn't correctly mark the ballots with their felt-tip black pens, the votes were disqualified by election officials.

The candidate took her case to court, to no avail. The votes didn't count. She was out.

Sound familiar? For San Diego voters following the swirling postelection mayoral battle, that could pretty well be describing the situation involving Councilwoman Donna Frye ? except it's not. 
  
That exact scenario unfolded earlier this year in the congressional campaign of Green Party candidate Terry Baum in the capital of left-leaning politics, San Francisco.

Baum's futile effort to get 229 write-in votes counted for her in a primary election bears a striking similarity to the San Diego race and Frye's campaign.

The court records in Baum's case also indicate how difficult it might be for Frye to prevail in an expected court challenge of her own to get 5,547 ballots for her counted. Those ballots had Frye's name written on the blank line but lacked a voter-shaded-in bubble next to it.

They weren't included in the certified vote count by Registrar of Voters Sally McPherson, who pointed to a state law ? Elections Code Section 15342(a) ? that says the bubble has to be colored in for the vote to be considered lawful and to count.

If a judge ordered them added to in her tally, Frye would top incumbent Dick Murphy by 3,439 votes and become the city's mayor.

Attorney Fred Woocher, representing two Frye supporters, is expected to file an election contest lawsuit arguing that those ballots that list Frye's name but have a blank bubble should be counted in her favor.

The Santa Monica attorney, once nominated for the federal bench by President Clinton, tallied the ballots last week during a recount. Several news organizations, including The San Diego Union-Tribune, participated in the review of the ballots. Unlike Woocher, the media organizations weren't interested in potentially overturning the election, only in finding out how many total votes were cast for Frye.

Woocher thinks he has strong legal arguments to get the votes counted, and he warned against reading too much into the Baum case.

"Judicial decisions are only as good as the lawyering they get," he said. "Baum is not legally binding, and I think it's wrong."

The thrust of Woocher's argument, like the case made by Baum's lawyer, will be that the intent of the voters on those ballots ? to elect Frye ? is clear and should overrule the state law.

But Woocher probably will be swimming upstream.

"It's always difficult to contest an election," said Rick Hasen, a professor at Loyola Law School and an elections law expert.

Hasen said the tally of unbubbled ballots this week showing that Frye would have won had they been counted helps her because it gets "public-relations momentum behind Frye." Going into court is different, he said.

"I would say she has a chance," Hasen said. "A good chance is probably going too far."

Bob Ottilie, Murphy's lawyer, said a half-dozen appellate and state Supreme Court cases also make it clear that the disputed Frye ballots shouldn't count.

"They have to hit a home run," he said of the mayor's legal opponents.

Certainly, on its face, the Baum case offers little comfort to Frye supporters.

Not only did a Superior Court judge issue a written ruling firmly on the side of state law, the San Francisco City Attorney's Office produced a five-page legal opinion also supporting elections officials who disqualified the ballots.

It appears to be the only other case in the state in which a court addressed the issue of incomplete optical-scan write-in votes.

Baum decided to run in the March primary in order to get on the November ballot and challenge Democrat Nancy Pelosi, who is the minority leader of the House of Representatives and represents the 8th Congressional District.

Baum needed 1,605 valid write-in votes from Green Party voters in the primary to qualify. Election officials initially said she had 1,659. But after a second count a few days later, Director of Elections John Arntz said 229 votes for Baum weren't valid.

Like San Diego, San Francisco used an optical-scan voting machine to count ballots. This newer voting technology tabulates votes, in San Diego's case, by reading the shaded-in bubble in a race or measure.

The system in San Francisco was a bit different. There, voters had to connect two segments of an arrow next to Baum's name. The line drawn by voters was read by the machine.

The 229 disqualified ballots were from voters who didn't connect the arrow but had written in Baum's name.

The decision not to count those ballots was backed by San Francisco's city attorney. A legal opinion from the office emphasized two points sure to be raised by Murphy forces, as well:

 Only lawfully cast votes can be counted.

 The bubbling requirement is there to ensure that all valid write-in votes are counted and treated the same way.

"This rule may seem contrary to both public policy and common sense if ballots are invalidated even though voter intent is reasonably clear," wrote San Francisco Deputy City Attorney Julia Moll. "Nonetheless, Section 15342(a) appears designed to ensure the uniform treatment of write-in votes."

When Baum filed an election contest suit, Superior Court Judge Ronald Quidachay ruled against her, writing that the case was "squarely governed" by the technical requirements of Section 15342(a).

Quidachay wrote that "the general rule in favor of effectuating voter intent must give way when voters fail to follow the instructions that allow their votes to be identified and tabulated by a voting system."

He relied on a case from San Bernardino County in 1981 that also has been frequently cited in the San Diego postelection litigation. The case, Fair v. Hernandez, involved a tight city council race between an incumbent and a write-in challenger.

After an election in which dozens of disputed ballots were examined, a judge declared the write-in candidate the winner by two votes. The incumbent appealed, and the justices of the 4th District Court of Appeal disqualified four write-in votes, handing victory to the incumbent.

The reason? The justices said the ballots were unlawfully cast.

The four voters clearly indicated whom they wanted to vote for by writing the name of the candidate on the punch-card ballot. But the voting rules said write-ins also had to be written on a "secrecy envelope" accompanying the ballot.

The justices acknowledged that it was easy to discern the will of those voters. "But it is not enough to find out generally the voter's will; such will must be expressed in the manner prescribed by law," they wrote.

That decision was issued in 1981, 17 years before the state passed its current elections code mandating filled-in bubbles for write-in votes. And while the case has been frequently cited by lawyers for Murphy, Woocher said there are other state Supreme Court cases that reach a different conclusion.

He said that in one case decided several years after Fair v. Hernandez, the justices declined to disqualify a handful of absentee ballots cast in a San Mateo County election.

"The courts have repeatedly said, 'We are not going to defeat the fair expression of the people's will on the grounds of some technical violation,' " Woocher said.

He also is convinced that the fill-in-the-bubble law was passed primarily so the optical-scan machines could read votes quickly and efficiently.

But he said that's important only during the initial count of votes, before the registrar certifies the election. During a recount, ballots are looked at by hand, eliminating the rationale for the bubble requirement.

"In this case, I don't think you can interpret that section to say those votes don't get counted ever," Woocher said. "I think (a court) is going to say they just don't get counted in the machine review. Every time you do a manual recount, it is precisely because the machine did not catch some votes."

Ottilie and others reject such theories. He said the key to counting ? by hand or machine, absentee or precinct ballot, before or after certification ? is whether it is a lawfully cast vote.

"The act of putting a name on the line isn't a vote," Ottilie said. "That act is to identify the person you want to vote for. The vote is filling in the oval."

Woocher will probably argue that some votes with just an X or small dot or check in the oval were counted by election officials. The Elections Code allows that, as long as officials can discern the intent of the voter.

Woocher said that's not fair, but Ottilie plans to argue that the mark makes those ballots lawfully cast votes.

A number of other arguments also can be raised, probably more than were summoned in the Baum case. Even so, Macheas Herman, the Baum campaign manager who helped fight to get her candidate's votes counted, was pessimistic.

"I think they have a real high bar to clear," she said of Frye's supporters. "In California, it seems the standard now is every vote ? in technical compliance with the law ? shall be counted."