Trial opens in challenges of S.D. mayoral election
By Greg Moran
San Diego UNION-TRIBUNE STAFF WRITER

February 1, 2005

 
Two formal challenges to Mayor Dick Murphy's victory in the 2004 San Diego election got under way yesterday as lawyers pressed their arguments that thousands of ballots that could tip the race were wrongly excluded.

The lawyers for two sets of voters contesting Murphy's re-election argued that county election officials were in error and unfair when they relied on a state law to exclude thousands of votes for Councilwoman Donna Frye.

The first day of the trial also featured testimony from Registrar of Voters Sally McPherson, who was questioned about how and why her office published certain election materials and how some votes were counted and others not.

The trial centers on 5,551 uncounted ballots cast in the Nov. 2 election. The ballots have Frye's name as a write-in candidate for mayor, but do not have a small oval-shaped bubble next to her name shaded in. Four more votes for Frye were found in a review of ballots by attorneys in the case on Friday.

Cardboard boxes containing copies of the 5,551 ballots were set to one side of the courtroom.

If Orange County Superior Court Judge Michael Brenner rules that the votes should be included in Frye's total, the councilwoman would become mayor. In the official count, Murphy has been certified the winner by 2,108 votes out of more than 450,000 cast.

Brenner was appointed to hear the case after the San Diego bench was recused to avoid any bias because Murphy served as a judge on the local bench before being elected mayor in 2000.

Brenner indicated yesterday several times that the trial ? turning as it does on mainly legal questions about the application of state and city laws to the election ? should not take long. The lawyers have said the trial should conclude this week.

The trial is scheduled to continue today with more testimony from McPherson. The challenges question a state law that says only write-in votes with the bubble filled in next to them can be counted.

Attorney Fred Woocher, representing one set of challengers, told Brenner that McPherson, the registrar, was incorrectly relying on the bubble rule and ignoring the "ultimate standard" for counting votes, which is to follow the intent of the voter as much as possible.  
He said he will show that reliance on the bubble rule was also misapplied in this race. He said the 1998 rule is solely designed so voting machines using new technologies can quickly read ballots.

He noted that all write-in votes for Frye were segregated at the precincts and hand-counted by election workers, a process that makes the rationale for shading in the bubble void.

Bob Ottilie, the lawyer for Murphy, said in his opening remarks that for a century, in more than a half-dozen cases, state courts have ruled that only votes cast in compliance with voting rules can be counted.

He said Woocher and attorney Bruce Henderson, representing a separate challenge that has been combined in this trial, want the judge to make new law. He defended McPherson's actions.

"She followed the law," he said.

Also in question is the conflict between the state elections law and the city's law. Henderson told Brenner the municipal code says simply that all write-in votes should be counted.

It makes no mention of bubbles or other technical requirements. And as a charter city, San Diego's rules take precedence over any state laws, he said, because charter cities have the power to govern their elections. 
 
Ottilie disagreed and said that in July the City Council voted to consolidate the election with the statewide voting. When that was done the state election laws applied, he said.

Two courts have endorsed that argument in two previous lawsuits. During yesterday's testimony Woocher tried to punch holes in that by questioning McPherson and San Diego Assistant City Clerk Joyce Lane about a number of instances in which city laws were applied to the election, even though they conflicted with state laws.

For example, the state Elections Code allows only three words to be used to describe a candidate's occupation, but the San Diego code allows four words. Lane acknowledged that candidates appeared on the ballot with four words.

She also agreed with Ottilie when he checked off a long list of tasks, from determining the location of precincts to hiring poll workers, that the registrar did for the city. Ottilie contended that the council action made the registrar responsible for the "broad conduct of the election."

That clearly includes how the ballots were counted, which Woocher began to focus on yesterday.

In his opening statement Woocher showed Brenner examples of two ballots: On one the voter had crossed out the name of Murphy and candidate Ron Roberts and had clearly written in Frye's name, But the bubble was blank, and the vote was excluded.

"This is a ballot on which the intent of the voter could not be more clear," he said. He then showed an enlargement of a second vote that was counted. It was actually a sample ballot ? one sent to voters before the election ? that had check marks and other markings and was counted for Murphy because the registrar determined what was the voter's intent.

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

Under questioning by Woocher, McPherson said that in a 104-page sample ballot there is not a complete set of instructions on how to cast a proper write-in vote.

County voters were using an optical scanning system for the first time, and in no previous election did a write-in vote require shading in an bubble, Woocher said.

Those points fed into another part of Woocher's argument ? that instructions to voters were confusing and incomplete, leading some voters to be unfairly disenfranchised.

At the end of the day, Woocher was questioning McPherson about the registrar's practice ? authorized by law ? to "enhance" certain ballots that are deemed defective, but where the intent of the voter can be discerned.

One ballot had check marks in the bubble for all the races, except for mayor. There, the voter wrote in Frye's name but left the bubble empty. The registrar corrected the ballot in all the other races ? but not in the mayor's race, and the vote was not counted.

That disparate and arbitrary treatment of write-in votes is the core of Woocher's case.