2 challenges call for Frye to be named S.D. mayor
 
 
       

By Philip J. LaVelle
San Diego UNION-TRIBUNE STAFF WRITER

December 31, 2004

Two formal challenges to San Diego's mayoral race were filed yesterday, one asking the City Council to declare write-in candidate Donna Frye the winner, the other asking the courts to do the same.

   
Acting on behalf of two Frye supporters, Santa Monica lawyer Fred Woocher filed a letter with the City Council urging its members to exercise rights, under the city charter, that allow them to be "the judge" of the mayoral election.

"We recognize that the action we are asking the City Council to take is extraordinary," Woocher told a news conference outside City Hall, "but these are extraordinary circumstances."

Earlier yesterday, Bruce Henderson, a lawyer and former council member, filed suit in Superior Court against Mayor Dick Murphy, contending that because San Diego is a charter city, its election rules prevail over rules adopted by the state Legislature.

More people cast ballots for Frye than for Murphy in the Nov. 2 election. But county Registrar of Voters Sally McPherson refused to count ballots that have Frye's name written on them but do not have a corresponding oval bubble shaded in, saying the latter is required by state law.

Henderson says that under language in the city's municipal code, the disputed ballots should be counted.

Murphy attorney Bob Ottilie said Woocher's move is a sign that the Frye supporters realize they have little chance in court, while Woocher said his odds are "wonderful." Ottilie said the Henderson lawsuit is a retread of earlier, unsuccessful claims made by the San Diego chapter of the League of Women Voters.

Developments

Lawsuit filed: Attorney Bruce Henderson filed a lawsuit in Superior Court contending that under the city election code, 5,547 disputed write-in ballots for Councilwoman Donna Frye should be counted, which would make her mayor.

Meeting sought: Attorney Fred Woocher, on behalf of two Frye supporters, called on Mayor Dick Murphy and the City Council to hold a special meeting next week to declare Frye the winner over Murphy, and said a lawsuit could follow if that doesn't happen.

Response: Murphy's attorney, Bob Ottilie, said the only way to contest the election is in court, and that Henderson's lawsuit has no merit because state law takes precedence when local and state elections are consolidated.
Woocher's action "is good news for the people of San Diego," Ottilie said at a news conference yesterday, referring to Woocher's action, "because it shows that the end is in sight."

He disputed Woocher's contention that the council has the power to change the election outcome. Ottilie said the council already exercised its rights in the election when it voted to certify Murphy the winner.

Frye, a member of the City Council, entered the mayor's race five weeks before the Nov. 2 election and was given little chance by the city's political establishment.

In the official tally, Republican Murphy beat Democrat Frye by a mere 2,108 votes. County Supervisor Ron Roberts, a Republican, placed third.

But an unofficial recount this month showed there were 5,547 ballots cast for Frye but without the bubble filled in. Had those ballots been counted, Frye would have defeated Murphy by 3,439 votes.

Murphy would not comment yesterday, and his office referred calls on the latest developments to Ottilie.

Frye said in an interview that she did not collaborate on either of yesterday's actions and has no plans to file her own election challenge in court. The deadline is Jan. 7, 30 days after the council certified the election.

"I still believe, and have always believed, that all the votes should be counted," said Frye, a clean-water activist and surfboard shop owner and the wife of surfing legend Skip Frye.

"If voters actually took the time to write in someone's name, it's real clear what they intended to do," she said.

The two Frye supporters Woocher is representing, Gail Rojas and Brian Lawrence, asked for a count this month of the so-called unbubbled ballots in a failed bid to persuade McPherson to declare Frye the winner.

Several news organizations, including The San Diego Union-Tribune, also asked for a tally of the previously uncounted Frye ballots, solely to determine how many there were.

Yesterday, Woocher said he hopes the council takes quick action on his request.

"We think we can get it done before the (mayor's) State of the City address" on Jan. 10, he said, "so we can have the real mayor give the address."

In his letter to Murphy and the council, Woocher said that "only an egregious misapplication and misinterpretation of a provision of state law" by McPherson has "prevented Donna Frye from assuming her rightful position as Mayor of this City."

The letter asks that the council meet in special session next week to begin election-contest proceedings.

It also said the municipal code calls for counting any write-in ballot, regardless of whether the bubble is shaded in.

Ottilie said the city agreed, by consolidating its ballot with the statewide election ballot Nov. 2, to abide by the rules of the state's election code.

Noting the extraordinary nature of the request, Woocher said in the letter: "The City of San Diego is mired in a financial and legal crisis of staggering and still-unknown dimensions. The incumbent Mayor ran for re-election in November, and two-thirds of the city's voters rejected his candidacy."

The letter also called Frye's tally "the largest write-in vote total ever received by a candidate in the history of the State of California, if not the United States."

Frye received 155,851 votes in the official tally.

Woocher, in response to a question, said he might sue in state or federal court if the council ? as widely expected ? rejects his request.

"I think our chances (in court) are wonderful, but I'd rather not have to go through that long proceeding," he said.

Councilman Ralph Inzunza, the only other council member besides Frye who could be reached yesterday, said he wants advice from City Attorney Michael Aguirre before commenting on the possibility of a special meeting.

"I don't know if what Mr. Woocher is asking for is even possible," Inzunza said. "The city attorney can make an opinion on just about everything. I see no reason why he can't opine on this. And I think he will."

Aguirre declined to comment last night, saying he had not carefully read Woocher's letter or Henderson's lawsuit or researched their contents.

The City Attorney's Office, Aguirre said, is continuing research for its own opinion, which may come next week, on whether the unbubbled Frye votes should count.

Aguirre said he didn't know whether he would issue an opinion on issues raised in Woocher's letter.

Henderson's lawsuit was filed at Superior Court on behalf of Libertarian Steven Currie and Republican Lou Conde, a former member of the county Board of Supervisors.

The suit focuses on the municipal code language regarding the counting of write-in ballots.

Henderson said his clients will not say whether they shaded in the bubble when they voted for Frye. "We don't want it to be relevant," he said.