Closing arguments expected today in mayoral challenge
By Greg Moran
San Diego UNION-TRIBUNE STAFF WRITER

February 2, 2005

The lawsuit seeking to overturn the San Diego mayor's race headed toward a conclusion today following a second day of testimony about rejected write-in ballots and after the judge trimmed the breadth of the challengers' case.

 Closing arguments in the bench trial in front of Judge Michael Brenner are expected today, and Brenner has indicated that he will rule expeditiously on the challenge to Mayor Dick Murphy's victory.

Two sets of voters who supported the write-in challenge of Councilwoman Donna Frye are contesting the results and trying to get the judge to order 5,551 ballots included in Frye's total.

On those ballots, voters wrote in Frye's name in some form, but did not shade in an oval bubble next to her name. They were not counted by Registrar of Voters Sally McPherson, who relied on a state law requiring the bubble to be filled in.

If they are included, Frye ? who lost in the certified results by 2,108 votes ? would be declared the winner.

Yesterday, Brenner ? who from the first day of trial Monday has said the case is framed largely by the legal papers that have been filed and will turn largely on interpretation of the law ? moved the case along.

He said he did not need to hear from several witnesses that attorney Fred Woocher, representing one set of challengers, wanted to have testify.

These were voters who Woocher said tried to cast a write-in vote for Frye but were given wrong information by election workers.

After hearing from one of these voters, Brenner agreed with Bob Ottilie, the lawyer for Murphy, that stories of individual voters had no relevance to the larger legal issue of whether the disputed ballots should count.

Later, Brenner also curtailed the testimony of an expert witness who Woocher had called to discuss the history of the state law at issue.

Woocher was not pleased.

"I'm disappointed," he said outside of court. "I think the judge has unduly constricted the presentation of the case."

The challenge, framed by Woocher and San Diego lawyer Bruce Henderson ? representing a second set of challengers ? focuses on several issues. They argue that the bubble-in rule was irrelevant because it is intended only to aid election officials to count votes on machines, and in this race the write-in ballots were counted by hand.

They also argued that a city municipal code law stating all write-in votes should be counted, and making no mention of an oval, trumps the state law because San Diego is a charter city.

More broadly, Woocher argues that not counting the ballots violates voters' constitutional equal protection and voting rights.

That last point was the focus of testimony yesterday morning by McPherson. Woocher, using individual ballots from the batch of excluded Frye votes as well as some "hypothetical" ballots he had made for the trial, questioned her closely about her decisions.

Inconsistent?
Woocher tried to show that the registrar had been inconsistent in the types of votes that were counted and the standards that were used to count or not count them.

While state law requires the bubble to be filled in, Woocher asked McPherson about a set of procedures that are used in conjunction with the optical scanning voting machine. That was the machine used, for the first time, in the Nov. 2 election.

The procedures are reviewed and approved by the secretary of state before the machine is cleared for use.

Woocher's line of questioning advanced his contention that the procedures require elections officials to count votes as long as the intent of the voter, in the words of the manual, is "clearly and consistently" indicated.

That is a key point in the challenge: the argument that voters who wrote in Frye's name clearly indicated their intent, even if they did not comply with the technical requirements of the law to fill in the bubble.

Woocher questioned McPherson about a number of questionable ballots. On one ballot, the voter ? instead of shading in ovals ? put crosses in the bubble for all races, including a vote for Murphy for mayor.

That vote was counted because there was a consistent pattern to the marking that could determine the voter intent, McPherson said.

Another ballot Woocher displayed had all the ovals filled in except in the mayor's category, in which Frye's name was written in and the oval circled, and the vote was not counted for Frye.

McPherson said it was not counted because "it was not a consistent pattern" of markings on the ballot to determine intent.

Another ballot
And on it went. Woocher produced another ballot where the voter had written in Frye's name, but not on the write-in line provided on the ballot. Next to the name, the voter had drawn his/her own oval, and colored it in.

That vote was not counted because it was not done in accordance with the law, McPherson testified. The name was not written on the write-in candidate line provided on the ballot and the oval was not shaded in, she said.

McPherson did not waver during the questioning. When Woocher asked her what standard she was applying, she quickly retorted, "I'm applying the law."

Ottilie, Murphy's attorney, also defended the registrar through his questioning. McPherson testified that the procedures in the voting manual are consistent with the state law ? requiring that the oval be filled in for a write-in vote to count. Ottilie has argued that McPherson had no discretion and had to follow that law.

"It is the filling in of the oval that is the making of a choice under these procedures?" Ottilie asked, and McPherson agreed.

Ottilie also elicited testimony that before the election, the registrar put out voluminous information about the proper way to vote. At no time did anyone from the Frye campaign or elsewhere instruct her to count the votes under the city law instead of the state law, and no legal action was taken before the voting to force her to do that, she said.

One voter who testified about her experience, Caroline Anne Quinn, said a poll worker told her that all she had to do was write in Frye's name and make sure it was spelled correctly.

"She told me not to mark anything else on the ballot," Quinn said.

Ottilie objected to the testimony and Brenner agreed. He said that the issue rested not on the experiences of individual voters, but on what to do with the 5,551 ballots. He said he had to determine if state or city law applied, and if the state law was applied correctly and constitutionally in the race.