Ballot Review Favors Frye

SAN DIEGO —  The hotly disputed race for mayor here took a sharp turn Tuesday as a review of disputed ballots showed that Councilwoman Donna Frye would have beaten incumbent Mayor Dick Murphy if all votes had been counted.

Tuesday’s review looked at ballots that had not been counted in the official tally. It was conducted at the request of The Times, four other news organizations and two pro-Frye voters.

The results threw the politics of the state’s second-largest city into confusion more than a month after the Nov. 2 election. The disputed election comes at a high-stakes time for San Diego. Whoever is mayor will face a deep financial crisis and a federal investigation of city officials. Both stem from the city’s failure to properly fund its employee pension plans.

As the candidates and their lawyers and advisors plotted their next moves, Republican and Democratic political consultants and activists said the ballot review had severely weakened Murphy’s position.

Just a week ago, Murphy, a Republican, was sworn in after being certified as the winner with a margin of 2,108 votes over Frye, a Democrat who was a write-in candidate.

The ballot review Tuesday uncovered at least 4,854 additional, uncounted votes for Frye. That total will probably grow today as thousands more absentee ballots are surveyed. In all, 455,694 votes were cast.

“Dick Murphy is now the phony mayor,” said Scott Barnett, former executive director of the San Diego County Taxpayers Assn. and a Republican. “He already had only about a third of the vote; now there’s an incredible cloud over him.”

At issue in the balloting are thousands of “empty ovals” -- ballots in which a voter wrote in Frye’s name but failed to fill in the small oval next to the write-in line. Election officials had declined to count those ballots, and a Superior Court judge last month upheld their decision, saying that state election law required that ovals be filled in for a write-in to count.

The impact of the ballot review could be seen Tuesday afternoon on the faces of the two candidates as they answered questions from reporters -- Murphy appearing somewhat stressed while Frye seemed buoyant and upbeat.

“I have no objection to the examination of the ballots, but the bottom line is: Illegal votes don’t count,” said Murphy at a news conference at his City Hall office.

“To me it’s clear. I’m the legitimate mayor,” he added. “The state Legislature passed the law that says you must fill in the oval .... That’s the way it works in America. We are a society that follows the rule of law.”

Election law experts, however, say the law is far less clear. The question of whether to count the empty-oval ballots pits two principles of election law against each other: honoring the intent of voters versus requiring compliance with rules.

“The question is how much knowledge of the process can you require on the part of voters?” said Rick Hasen, an election law expert at Loyola Law School in Los Angeles. “Are you going to disenfranchise people who didn’t follow the rules?”

Frye, at her news conference at the Registrar of Voters office in a warehouse district north of downtown, ridiculed Murphy’s stance.

“Voting is not a test. It is an expression of the will of the voters,” she said. “It is unfortunate Mr. Murphy continues to insult the intelligence and integrity of the people of this great city.

“The public has spoken,” she added. “The question is whether the public will be heard.”

Gary Sirota, a lawyer for Frye, said no decision had been made on challenging the election.

Procedurally, Frye would formally request a recertification of the vote with the previously uncounted ballots added into the total. If the registrar turned down her request, she could then go to court.

But activists from both parties agreed that regardless of the legal niceties, Murphy’s position would be politically costly.

“It’s absurd not to count these votes. It’s hard enough to get people to vote without ignoring their votes because of a technicality,” said Barnett.

And while Murphy might ultimately win in court, the activists said, the dispute would diminish his authority.

“Even if the court continues to block these votes from counting, he’s got a very hollow victory,” said Bob Glaser, a Democratic political consultant. “It’s got to give Donna Frye and the other council members the power to take some control away from the mayor.”

“It further diminishes his authority and leadership on the council. He’s clearly the person who did not get the most votes,” said Cynthia Vicknair, a Republican consultant.

Frye, owner of a surf shop, received strong support from environmental groups and unions. She entered the race as a write-in candidate about a month before the election, joining a runoff that pitted Murphy against a second Republican, county Supervisor Ron Roberts.

In the days immediately after the election, as Frye led in the vote count, her maverick image and the prospect of a write-in victory drew national attention to the race. Then, as the vote count drew to a close, Murphy pulled ahead. Frye’s backers insisted that thousands of empty-oval write-in ballots were being ignored, but until Tuesday’s review by the news organizations, no actual figures existed.

Now that the number of empty ovals is known, the legal battle is expected to restart. Frye is not bound by the previous ruling by Tulare County Superior Court Judge Eric Helgesen, which came in a suit brought by the League of Women Voters. She or her supporters have until Jan. 7 to challenge the election results.

The new tally came after requests by The Times, the San Diego Union-Tribune, KPBS radio and television, KGTV television, and KNSD television to examine the ballots, which under state law must be open to public scrutiny. A similar request was filed by Fredric Woocher on behalf of the two Frye backers.

The review’s cost to the county, about $2,000 so far, was split evenly between Woocher and the five news organizations.

Hal Simon, the Frye campaign’s top poll watcher, who had correctly predicted that more than 4,000 empty-oval votes would be found among ballots cast at precincts on election day, said he believed an additional 1,500 to 1,800 Frye votes would be found among the absentee ballots that had yet to be counted.

Times researchers Rodney Bosch and Maria Lopez contributed to this report.