Court challenge to San Diego mayoral election begins

MICHELLE MORGANTE

Associated Press   31 January 2005

SAN DIEGO - Voters who backed a write-in mayoral candidate in the November election have been wrongly disenfranchised by arbitrary and overly burdensome rules, lawyers told a judge Monday on the first day of a court effort to overturn the victory of Mayor Dick Murphy.

Cardboard boxes set to one side of Judge Michael Brenner's bench held 5,551 ballots with City Councilwoman Donna Frye's name written on them, but the corresponding optical-scan bubble left blank. The ballots would be enough to overcome Murphy's 2,108-vote margin of victory, but they were not counted because San Diego County election officials said state law mandates that the bubble be darkened.

The registrar of voters found Murphy to be the victor, and after a series of challenges to the election, he was sworn into office on Dec. 8.

Attorney Fred Woocher, who represents three San Diego voters, argued the state law was drafted solely for the convenience of election officials using ballot-counting machines and amounted to an unconstitutional burden on voters, specifically those who may not fully understand the ins and outs of election codes.

Bob Ottilie, the attorney representing Murphy, said California courts repeatedly have ruled that votes shall be counted only if they are in full compliance with the law.

"Time and time again, California Supreme Courts ... have said, 'Do not count the vote if cast in a manner not prescribed by law,'" Ottilie said.

Woocher maintained the 2004 San Diego election is similar to the 2000 presidential vote-count in Florida, which he said demonstrated that ballot-counting is a complex matter.

"Human beings cast ballots and machines often count them ... and people do weird things," he said. "Not everybody is able to process voting instructions the way we here in this courtroom may do. Not everybody understands."

Woocher and attorney Bruce Henderson, who is leading a case that was combined with Woocher's lawsuit, said in their opening statements that if Registrar of Voters Sally McPherson had looked to the intent of the voters, the "unbubbled" ballots for Frye would have been counted.

"Intent of the voter is what matters," Woocher said.

Henderson noted that voter intent on the questionable ballots is clear because voters first had to locate the write-in line in the mayoral section of the ballot, and then they had to write in Frye's name.

Woocher held up the image of a ballot which had Frye's name written on it, and the other candidates' names crossed out, but went uncounted because the bubble was left blank.

He also showed another ballot that was counted: A sample ballot that had been mailed to registered voters ahead of the election and was turned in marked with checks and crosses, including a vote for Murphy.

"These two votes were treated differently," he said. "Only write-in votes had the requirement that the bubble be filled in."

Ottilie countered that Woocher is wrong to argue that acceptance of some unqualified ballots should mandate that the unbubbled Frye ballots be included. It would be proper to instead argue that all such ballots be disqualified, he said.

Henderson and Woocher also said city law should trump state law in a city election to choose city leaders. Henderson cited city code regarding write-in candidates which says: "Any name written in the ballot in the line provided therefore shall be counted."

The state law requiring the corresponding bubble be darkened "serves absolutely no purpose," he said. Write-in votes, he noted, are counted by hand.

Ottilie said the court did not have the authority to override state lawmakers who purposely made the requirement and repealed the old law pertaining to write-in votes. McPherson, he said, acted properly in not counting the unbubbled ballots.

"The 'mistake' they complain of, the 'misconduct' they complain of is that the registrar complied with state law," he said.