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PENSION COVER-UP
MAYORAL
ELECTION ACHIEVES:
Many watchdogs are sadden by the Frye loss of the Mayor election.
San Diegains are unhappy about the state of affairs in San Diego, but many citizens do not vote, or vote for the same business as usual politicians backed by the good old boys network. Much of the intrenched local press and lobbiests continue to work against the public good. The troubled history of the Mayors is a prime example:
Excerpt: Out of hiding The moneymen behind that last-minute hit on San Diego mayoral candidate Donna Frye finally emerged early last week with the filing of the semiannual statement for the "Coalition to Keep San Diego Working," the committee that sponsored the mailing. Top givers: Mission Valley hotel magnate C. Terry Brown and wife Charlene, $43,000; the San Diego Building Industry Association PAC, $44,000; the San Diego Board of Realtors PAC, $25,000; and the San Diego Restaurant Association, $5000. All contributed around the last week of October. Frye backers have contended that the committee acted illegally by failing to disclose the identity of its contributors before the election; an ethics complaint is pending.Although April Boling, Mayor Dick Murphy's close friend and campaign treasurer, oversaw the finances of the coalition, many of its backers were loyalists of Murphy's other opponent, county supervisor Ron Roberts. Brown, for instance, in late October spent $62,875 for polling and radio spots on behalf of Roberts. Republican Brown also gave $25,000 to the local Democratic Central Committee, $23,004 of which was spent on a mailer for San Diego city councilman Scott Peters, Breaking Stories, Reader, Feb, 10, 2005The case Donna Frye should/should not pursue
Council member Donna Frye should continue her fight in court to validate the 5,000-plus votes cast for her election to mayor. This will require an appeal of the recent decision, perhaps all the way to the U.S. Supreme Court, where I believe she should, and will, win.
The voter abuse involves the very thing that the Federal Voting Rights Act was adopted to prevent – the arbitrary dictates of state procedures to deny substantive voting rights. The trial judge's reasoning is a prime example of the folly that necessitated the act – "they (Frye voters who failed to fill in the bubble) did not vote." They wrote her right name on the right line on the right ballot at the right time, but because they did not mark the bubble, they did not vote? Applying any standard that makes sense – logic, reason, ethics, constitutional law – the judge's ruling is absurd.
Frye should appeal the decision up to the highest court, not merely to protect the rights of her voters, but to ensure that the substance of voting rights will count more in the future than procedures convenient to bureaucrats.
ROBERT L. SIMMONS, Professor of Law (ret.) USD, Retired judge
Union Tribune, Letters to the editor, February 8, 2005
MAYORAL RACE ACHIEVES
To count or not unfilled bubbles
When I hear that it's "time to move on" in the mayor's race, it sounds like a call to move on with business as usual at City Hall, to move on with sweetheart deals for contractors (e.g. the gifting of the Naval Training Center to Corky McMillin), to shrug off the Petco Park giveaway, and to forget about the looting of the city pension fund. This kind of "moving on" is just what most San Diego voters clearly do not want.
How about moving along with the democratic process? What message are we sending to our children when teachers have to explain that "the person with the most votes does not always win"? How can voter intent be so blatantly ignored as it has been in the refusal to count all the votes for Donna Frye? We teach our kids not to give in to bullies on the school yard. Let's be sure we also teach them not to give in to bullies in the political arena.
This is not just a "sour grapes" response. It is a protest against the souring of the fundamentals of our democracy. It is a protest against efforts to circumvent the will of the people to serve the powers that be. The people have voted to start putting the brakes on San Diego's political machine. Let's respect that mandate.
ELIZABETH M. GLASIER, San Diego , Union Tribune, Letters to the editor, January 27, 2005
Jan. 2nd Hundreds attended "The 5,547 Vote March & Declaration"
Making the will of the people known to our public servants
Signatures were delivered to City Councilmembers. There are 5,547 ballots on which a voter wrote in Councilwoman Donna Frye's name but did not fill in the corresponding bubble, that were not counted. Dick Murphy's official margin of "victory" is 2,108 votes.In a poll of San Diego voters conducted Wed. by SurveyUSA regarding the non-bubbled votes, fully 60% of those surveyed believe that the disqualified votes should be counted. 58% believe our campaign should file a legal challenge to include the votes in the final tally.
Full survey report www.donnafryeformayor.com/files/kgtv041215frye.pdf or info: www.voterr.org
San Diego's CEO or King?
By Scott Barnett & Matt Potter, October 27, 2005
(Full Article) http://www.sdreader.com/php/cityshow.php?id=C102705B
(Excerpt) Mayoral candidates Donna Frye and Jerry Sanders were each asked to sit down for on-the-record interviews. Sanders's campaign press secretary, Scott Maloni, initially agreed to the interview, then called back to say that Sanders would accept only if the questions were submitted in advance and declined the invitation.
Donna Frye sat down with us on October 14.
Why do you want to be mayor?
Because I want to correct this city, and I want to get us back to reality. I live here. I grew up here. I wasn't born here, but I was raised here. And I think that if Jerry Sanders gets elected, nothing's going to change.
Because he doesn't care about the city's problems?
It's not a case that he doesn't care about them. I'm sure he cares about them in his own way. I don't think anything will change because the same people that got us here are the same people that are supporting Jerry Sanders, are the same people that are advising Jerry Sanders, are the same people that are saying, "Let's go issue more debt. Let's go sell off city assets. Let's wait until a court decides." He has John Witt [the former city attorney] advising him at a news conference this week about the illegal benefits! These were the guys that were sitting in the room advising people to vote on underfunding [the pension system], and that's who Sanders uses as his advisor? Are you kidding? It's the same old stuff!
Donna announced her plan to address the City’s financial issues in one year, calling it her “Triple A (AAA) Plan for San Diego”.
Sept. 24—Frye said, “When most people think of Triple A (AAA), they think of road maps and roadside assistance you can call when you are in trouble. And that’s what this comprehensive plan provides, a road map and emergency assistance for our city.”
The three A’s addressed in the plan are:
Accountability – One person - the Mayor - will be responsible for fixing the problem and be accountable to the voters.
Assurance – The problem will be fixed with a comprehensive plan that assures that this financial mess won’t happen again.
Approval – The voters will always have a voice in the solution because they have the final approval.
Frye stated, “The city’s financial problems involve more than just the pension system. The financial crisis is everywhere we look, including retiree health benefits, unfunded needs, the infrastructure deficit, sewer rates, ongoing litigation, and overstatement of assets. Taken together, the numbers are staggering.”
“The public deserves a plan that is not simply a piecemeal approach going nowhere at taxpayer expense,” Frye continued.
The Plan would ask the voters to give the Mayor authority to exclusively negotiate a comprehensive recovery package. The public would then vote on this proposal within a year of taking office.
"With my approach, the game ends," Frye announced. “This plan puts the people of San Diego at the table. Everyone's had a seat at the table except one -- and that's the public.”
As importantly, Frye pledged, this plan will make sure that this financial mess never happens again.
For more details on the plan, visit www.donnafryeformayor.com
The Money Game: Cash in the Mayoral Campaign
Compiled by ANDREW DONOHUE, Voice Political Writer
Published on Friday, June 24, 2005 by Voice of San Diego
In a mayoral race focused intensely on city finances and personal independence, the campaign contributions funneled into candidate accounts in the first month of the campaign provide an insight into who wants which candidate in office, and how badly.
And the breakdown is fairly simple. Environmentalists, teachers and activists put their money with Councilwoman Donna Frye.
The usual batch of downtown influentials and the law enforcement community have thrown their support behind former police chief Jerry Sanders, while the superrich CEOs like the superrich CEO Steve Francis.
None of the other 11 candidates made much of a splash in the fundraising department. For example, Harley-Davidson dealer Myke Shelby reported raising $100,250. Of that total, he loaned himself $100,000 and received one $250 contribution from a retired guy in Pasadena.According to statements on file this week at the City Clerk's Office:
-- Frye, the populist councilwoman, raised $74,669.08 as of the June 11 reporting deadline. Her financial backers fall in line with what would be expected from a grassroots environmentalist: an Ocean Beach physician, college professors, environmentalists, teachers and activists.
The names include the Sierra Club's Eric Bowlby, Norma Damashek of the League of Women Voters, outspoken former county Supervisor Lou Conde and Steven Schanes, the former head of the U.S. Pension Benefit Guarantee Corp.
The early frontrunner in this abridged special election season, Frye controls a lead in all early polls -- despite the fact that she's barely spent any of her money. Of the nearly $75,000 raised, the councilwoman has spent only $19,304.
But her spending is likely to increase shortly, as an e-mail from her campaign to supporters Thursday announced that lawn signs will be available this weekend.
-- Sanders was the quickest to the draw in the yard sign department, as any cruise through residential San Diego shows. His campaign also used news Internet sites frequently, paying $1,500 for banner ads to The Daily Transcript and $7,000 to the Web site of The San Diego Union-Tribune.In sum, Sanders brought in $106,050 from a mix of constituencies, spending a total of $80,487.44 as of the June 11 filing deadline. In that timeframe, he experienced a significant increase in his polling numbers.Most notably, his campaign statements show the support of the politically entrenched, with a smattering of contributions from the government contacts at such large corporate players as Cox Communications, San Diego Gas and Electric, Sempra Energy and the Cloud 9 shuttle service.Lobbyists, real estate professionals, developers and public relations folk also count themselves as Sanders campaign supporters.
For example, long-time City Hall lobbyists Nikki Clay and Mike McDade contributed funds to the Sanders effort.He also enjoys the support of a number of fellow government-types, such as Joe Craver, the chairman of the San Diego County Regional Airport Authority; Geoff Patnoe, chief of staff to county Supervisor Dianne Jacob; former councilman Byron Wear; and William Gore, assistant sheriff for the county of San Diego.
Sanders received campaign contributions from a number of people tied to the 1996 pension deal that began the city's historic underfunding of its pension system -- a deal that sits at the foundation of San Diego's multibillion dollar pension deficit and several ongoing local and federal investigations.
Former City Manager Jack McGrory and former Assistant City Attorney John Kaheny both gave to Sanders, as did the former president of the San Diego Police Officers Association, Brian Enerson. All three were singled out in a report earlier this week by City Attorney Mike Aguirre for their roles in the city's 1996 pension dealings, which Aguirre alleged to be an illegal fraud. Sanders also received the financial support of two employees of the San Diego City Employees' Retirement System.Sanders, a moderate Republican, reported the support of some Democrats as well, such as Midge Costanza, former aide to President Carter; Neil Senturia, husband of Voice of San Diego editor in chief Barbara Bry; and Murray Galinson, chairman of the California State University system.
Sanders' campaign manager, Scott Maloni, and his media manager, Bob Cerasoli, both contributed to the campaign, while also drawing paychecks from it.-- Anyone watching Padres games on television the last couple weeks has probably become more familiar with the mug of mayoral candidate Steve Francis than that of veteran closer Trevor Hoffmann.Francis, a wealthy business executive, dumped $750,000 of his own cash into his campaign in the first month of its existence, according to campaign filings. More than $455,000 of that went to television stations for a commercial that commanded local airwaves for nearly two weeks this month.
To date, Francis has been heavy in the wallet and light in substance in public appearances and debates. But he generated a lot of buzz amongst San Diego's elite, who decided to throw in an additional $74,990 into his robust election barrel.
Francis lists as campaign donors 25 CEOs, CFOs and COOs; 14 corporate presidents and a long list of vice presidents, executives, executive vice presidents, chairmen, directors, managing directors, owners and managing partners.Counted among Francis supporters: hotelier Doug Manchester and many of his immediate family members and employees; and executives from Evans Hotels, the Corky McMillin Cos., Francis' own AMN Healthcare Inc., and a throng of big names in the biotech community.In total, developers and hospitality executives dominate Francis' donor list.
But at least one Francis contributor seemed to be just your average working stiff. George H. Petit -- a student intern who is from Columbia, S.C., and employed by La Valencia Hotel in La Jolla -- also pitched in $300. Then again, so did Michael Ullman, La Valencia's managing director.
-- The others: Attorney Pat Shea, who jumped into the race at the last second, reported one contribution in all, a $100 donation from his campaign treasurer.
Anti-tax activist Richard Rider loaned himself $120,000 to start his campaign, accounting for the bulk of his funds thus far.
Any contribution that totals at least $100 must be reported, and the maximum contribution is $300.
Consulting fees. A breakdown of what each candidate reporting paying in consulting fees:
-- Frye: $295.
- Sanders: $20,211.25
-- Francis: $99,119.04
-- Shea: His consultant, Cynthia Vicknair, is working for free through the primary, she says, to atone for her work in getting outgoing Mayor Dick Murphy elected.
-- Shelby: $4,633.25Eco-friendly hedges.
Michael Turk, the president of eco-friendly KD Development two weeks ago co-starred in a press conference with Frye extolling the benefits of solar energy and Frye's efforts to make San Diego an industry headquarters.As could be expected, Turk, his wife Karen, and son Mike Jr., each gave the $300 maximum donation to Frye's campaign. But, the trio gave the same amounts to the Sanders campaign, as well.
San Diego council endorses special election for new mayor
ASSOCIATED PRESS, 3:34 p.m. May 2, 2005 SAN DIEGO –
The San Diego City Council unanimously voted Monday to hold a special election this summer to choose a replacement for Mayor Dick Murphy, who resigned a week ago amid the city's persistent financial troubles. The council voted 8-0, with one member absent, to set July 26 as the election date. If no candidate wins a clear majority, a runoff vote would be held at a time to be determined.
The council could have chosen to appoint a replacement for Murphy, whose resignation takes effect on July 15. The eight votes included both Murphy and Donna Frye, the councilwoman who narrowly lost a write-in bid to unseat the mayor last fall. Councilman Jim Madaffer was absent. "The only real solution here is to have a special election," Councilman Ralph Inzunza said. "I think what trumps the costs that are going to be necessary for an election is the will of the people."
Murphy resigned on April 25 during a brief, unexpected press conference saying San Diego needed "a fresh start." He has declined to elaborate on his motivations.
Murphy, a Republican former judge who is five months into his second term, has been dogged by criticism over his handling of San Diego's financial problems.
During several hours of public comment Monday, San Diegans at the meeting overwhelmingly urged the council to allow residents to vote for the next mayor.
The city's pension system has a nearly $1.4 billion deficit and is at the heart of investigations by the Securities and Exchange Commission, the U.S. attorney and FBI into city finances, possible public corruption and securities fraud.
Advisers to the mayor have said he also was troubled by the disputed November election. A state judge voided more than 5,000 write-in ballots for Frye, the Democratic city councilwoman and surf-shop owner, because voters failed to darken an oval next to her name, tipping the contest to Murphy
In announcing his resignation, Murphy said: "I now believe (that) to be effective the city will need a mayor elected by a solid majority of the voters and with a clear mandate." Frye has said she will run in the special election.
BREAKING NEWS/SPECIAL PROGRAMMING ANNOUNCEMENT MAYOR MURPHY RESIGNS MONDAY, APRIL 25
More on FULL FOCUS: 6:30 & 11 p.m.
"I am today announcing that I will step down as mayor of the city of San Diego on July 15th, 2005. I truly believe that that decision is in the best interests of the City Of San Diego."
San Diego Mayor Dick Murphy announced this morning that he will be stepping down as of July 15th.Frye Says She'll Run For Mayor
Dick Murphy Will Leave Office July 15
NBC San Diego, PDT UPDATED: 3:27 pm PDT Apr. 25, 2005, SAN DIEGO -- At a news conference in which she discussed her thoughts regarding the resignation of Mayor Dick Murphy, City Councilwoman Donna Frye said that she would run to replace him.Murphy made the bombshell announcement Monday morning. He said he would leave office on July 15 and anticipated that a special election to replace him would be consolidated with November's general election."It's clear to me that the city needs a fresh start," Murphy said, holding back emotion as he made the surprise announcement at City Hall while surrounded by his staff and family.Murphy, a 62-year-old former judge who has served 4½ years as mayor, said he will leave office July 15. He expects a special election Nov. 8 to select his replacement as leader of the nation's seventh-largest city.The announcement comes just months after a bruising re-election battle in which Murphy pulled out a 2,108-vote victory over a maverick city councilwoman who waged a surprisingly strong write-in campaign.Frye contended that more votes were cast for her, but thousands of the write-in ballots were disqualified under a state law. Following a series of legal challenges, Murphy was sworn into office on Dec. 8.Frye said Monday she would run for mayor if a special election were held in November. She said she intends to end to San Diego's culture of closed-door politics.The source of the turmoil that has followed Murphy is San Diego's pension system, which has a nearly $1.4 billion deficit. The Securities and Exchange Commission, federal prosecutors and the FBI are looking into the city's finances, including the possibility of securities fraud and other corruption.Last week, Murphy was called one of the country's three worst mayors by Time magazine, which said the mayor was "discredited" by the pension fund crisis.Murphy also has publicly clashed with the newly elected city attorney, Michael Aguirre, who has called for the mayor's resignation and issued a scathing report that found he and the City Council violated federal securities laws by hiding key information about city finances.In announcing his resignation, Murphy made reference to a change in government that was approved by voters last fall to give the mayor greater power. Currently, the city manager wields control over city functions."I now believe to be effective the city will need a mayor who was elected by a majority of the people and who has a clear mandate to take this city forward," he said.At the end of his short statement, he hugged his family and left the news conference to the applause of his staff. He did not take any questions from reporters.Murphy also cited his accomplishments as mayor, including the creation of an ethics commission, new libraries, establishing an airport authority, a new downtown baseball ballpark and reduced sewer spills. But his announcement was an acknowledgment that the problems overshadowing his administration had made him ineffective.The city's outside auditor, KPMG, has warned it cannot complete its audit of the city's 2003 books until an investigation is launched into whether city officials committed illegal acts. The lack of complete audits for 2003 and 2004, coupled with the ongoing investigations, has hobbled the city's ability to issue bonds, putting vital water and sewer projects on hold and threatening library and fire station construction. Standard & Poor's Ratings Services has suspended the city's credit rating.
Henderson drops write-in lawsuit
By Greg Moran, UNION-TRIBUNE, May 4, 2005
The City Council's decision to hold a special election to replace Mayor Dick Murphy reverberated through the courts yesterday, with one suit challenging the mayor's November win being dropped and a second now being reviewed.
Bruce Henderson, an attorney representing two voters who challenged Murphy's win over Councilwoman Donna Frye, said his suit was halted in light of the City Council's decision Monday to hold a special election for mayor. AdvertisementHenderson's challenge had been combined with another filed by three Frye supporters and aired during a three-day trial in January.
They argued that 5,551 ballots with Frye's name written in should be counted in her total, even though the voters did not – as state law requires – shade in an oval bubble next to the space. Frye lost the write-in bid by 2,308 votes.
A trial court judge ruled against the challenges, clearing the way for Murphy to be installed as mayor.
The challengers appealed, and the case has been pending at the 4th District Court of Appeal. But last week, Murphy suddenly announced he was resigning and would leave office July 15.
Frye said she would again run to replace him, and Monday the council decided to hold a special election July 26. Meanwhile, Fredric Woocher, a lawyer for Frye's supporters, said yesterday that he will speak to his clients. "We'll have some decision ourselves in the next few days," he said. If a court would rule that the 5,551 ballots should count and Frye ought to be mayor, Woocher has said she would be entitled to the seat – and no special election would be needed.
The appeals court has said the first legal briefs in the case have to be filed by the end of the month and oral arguments set for September. That could mean the case would be hovering over the campaign, adding what Bob Ottilie, Murphy's lawyer, has called unnecessary uncertainty over the mayor's successor.
Yesterday Ottilie welcomed Henderson's decision to pull out. "It allows people to turn their attention to the election with that cloud removed.
Now if the Woocher cloud can be removed, there will be no questions remaining, and people can have confidence that the next mayor they elect will be the mayor." If no candidate receives 50 percent of the vote in the July 26 special election, a runoff would be held, perhaps as early as Sept 13, though it could be held in November. The council has set no date for a runoff.
Let the Games Begin
April 26, 2005, Political Lunacy, Carl Luna's observations on California politics http://www.signonsandiego.com/news/weblogs/luna/
The race to pick a successor to Dick Murphy began about a nanosecond into his resignation speech yesterday. The current list of wannabe municipal mayoralties is already about as long as your arm and mid calf up your leg.
Topping the list is, of course, the fabulous Frye herself. But I'm only giving her 4:1 odds at best. She's got a lock on 30% of the vote and will make it to a runoff, but Republicans will fall into lockstep with whichever Republican makes it as well (providing one actually does). Throw in independents miffed that Donna write-in run was ultimately the cause of Dick's reelection, and the odds tip against her.
Ron Roberts is still considering whether or not to make a fourth run on the office that, but for Donna, might well have already been his. This is your last chance, Ron. Run, baby.
Put him at 5:1.
Then there are the other 1,249,412 names being bandied about as possible candidates. That list includes even former mayor and governor Pete Wilson. Pete Wilson? Please. Besides the fact he's pretty OLD why would he want to come out of retirement to clean up this mess. Did I mention he's also pretty OLD. While it may be attractive in a sentimental way to wish for old Ben Cartwright to come back and save the Ponderosa, Ben just ain't handlin' the six shooter as well as he did twenty five years ago. And neither is Pete. If you want a former mayor, how about we make an offer to Rudy Giuliani?
Of the other council members (of which there might be two fewer after Federal trials next month) Scott Peters and Jim Madaffer are probably going to run but given the high level of general public animosity towards the council they might consider saving their money and making a nice donation to Children's Hospital instead.
I'm looking for two of the city's gadfly's of the right to jump in and make this race both more interesting and polarizing. Carl Dimao (of the "Hi I'm Carl DeMaio, head of the Interest Group of One known as the Performance Institute) has probably been dreaming of an opportunity like this ever since he washed up on the shores of San Diego with a carpetbag full of east coast think tank money. And Republican businessman Phil Thalheimer, who came much closer to beating incumbent Scott Peters in the council district 1 race last fall, has become the darling of AM talk radio with his spearheading the "Damn the Constitution, Full Steam Ahead" petition drive to keep the cross on Mount Soledad. Both are conservative populists who might bleed off enough Ron Roberts support to put one of them in the general instead.
As to State level politicians coming back home to run for office, don't hold your breath. Politically speaking, San Diego has always been a place you launch yourself out of, not return to. And, but for Pete Wilson, San Diego Mayors don't go on to higher political office. Radio talk show host maybe, with a whole lotta money, but not political office. So it seems unlikely that Juan Vargas, Christine Kehoe or anyone else at the state level would consider leaving the balmy clime of Sacramento for the political muck of San Diego. Humid Washington , maybe, but not San Diego.
Which actually brings one to wonder why any politician with higher ambitions would want the job of San Diego mayor under current circumstances. Then again, ego and ambition is a daunting thing. There are, no doubt, plenty of politicians who think they will be able to turn around the mess that is San Diego. And if they succeed, they become a major star, especially given the national attention the City and office has been attracting. But perhaps what San Diego needs more than anything at this juncture is a statesman and not a politician.
Frye promises reform if elected S.D. mayor
By Philip J. LaVelle, UNION-TRIBUNE, May 15, 2005
Excerpt: "Our city faces not only a financial crisis but also a crisis of confidence," said Councilwoman Donna Frye, introduced by former Assemblyman Howard Wayne at yesterday's kickoff rally for her second mayoral campaign.
Councilwoman Donna Frye kicked off her second campaign for mayor yesterday with a pledge to restore San Diego's shaky finances while tearing down a "culture of secrecy" and corruption at City Hall.
Standing in roughly the same spot at Mission Bay Park where she launched her write-in campaign for mayor seven months ago, Frye told more than 200 enthusiastic supporters she would unify the city and aggressively reform city finances.
For real change, the San Diego Sierra Club
endorses Donna Frye for Mayor
On behalf of the 15,000 members of the local Sierra Club, we're pleased to announce the Sierra Club's endorsement of Donna Frye for Mayor of San Diego.Donna Frye started her journey into politics in pursuit of clean water. San Diegans now need her brand of clean leadership for every other area of politics and government.For clean energy…For clean progress…For clean government…Donna Frye is the only candidate who is not one of the good-old-boys. Donna Frye is the only candidate who will change business-as-usual downtown. Donna Frye is the only candidate who will ensure that everyone does their fair share to clean-up our finances while still protecting our quality of life.
For real change, we urge all San Diegans to volunteer , makebuttons, flyers, put up signs showing your support, and most importantly vote for Donna Frye for Mayor on Tues. July 26th.
Frye Court of Appeal Update:
April 27, 2005, The Court of Appeal has set a briefing schedule in the Frye vote case as well as scheduled oral argument for an unspecified date in September. Under that schedule a decision would be expected in October, which would the earliest, therefore, that Donna Frye could take office as San Diego's Mayor.
The Court of Appeal has also asked counsel to address in their briefs the question of whether the matter is or is not moot due to the resignation of Dick Murphy. Our opinion is that when the case was filed the court took jurisdiction over the election for the four-year term running from December 2004 through December 2008. Mr. Murphy's resignation does not affect that "term," nor does an appointment or new election result in a new term of office. Rather, an appointed mayor or newly elected mayor serves only for a portion of the term for which the original election was held November 2, 2004. Therefore, the case is not moot and once the court acknowledges that Donna Frye was the lawful winner of the November 2, 2004 election she takes office regardless of the resignation by Dick Murphy.
My clients (Mr. Currie and Mr. Conde) would like this matter briefed on a schedule that is even more expedited. We would like to have a decision in July. However, we have been waiting for the record to be prepared by the court clerk. That record should be available within a week or two at which point, we would hope to be able to present a revised schedule to the parties and to the court for consideration.
Obviously, it would be highly preferable if the Court of Appeal could rendered its decision in this case prior to July 15, 2005, the date Dick Murphy has announced as the effective date of his resignation.
—Bruce Henderson
Forty-two percent of San Diegans are undecided on next mayor
By ERIK PISOR, The Daily Transcript, April 26, 2005
Following the resignation of Mayor Dick Murphy, a poll taken Monday night revealed that 42 percent of San Diego voters are undecided on who should be the next mayor and 32 percent are for Councilwoman Donna Frye.
The poll, conducted by San Diego-based GIS Strategy Research, consisted of 439 randomly selected registered voters, who were interviewed by phone. The goal of the random sample was to get a quick poll out to the field on a hot topic, according to Richard Babcock, president of GIS Strategy Research.
Since there are more than 1 million people in San Diego, the margin of error for the poll is +/- 5 percent. GIS polls usually have around 13 questions, but since the poll dealt with a hot topic, no follow-up questions were asked, Babcock said.
Others receiving votes in the poll include: Ron Roberts, 14 percent; Peter Davis, 3 percent; Brian Maienschein, 3 percent; Scott Peters, 2 percent; Bob Filner, 1 percent and three others who received less than 1 percent.
“Donna Frye is way up (in percentage) because her name has been out there and she got more than that (percentage) in the regular election,” Babcock said, who mentioned he would likely be undecided. “You figure there’ll be a lot of undecided because the council hasn’t even announced an election date. So I’m not surprised by the numbers.”
The San Diego City Council soon will decide whether to replace Mayor Murphy, who announced his resignation Monday, by appointment or by holding a special election.
The council will have 30 days to appoint Murphy's successor from the time he vacates the office, which the outgoing mayor has stated will be July 15.
Should the council decide instead to hold a special election, that vote would have to be held within 90 days once an ordinance is adopted.
If a statewide election occurs within 180 days of the vacancy, the mayoral election could be consolidated with that vote at a significant savings.
Gov. Schwarzenegger is hoping to force a special statewide election Nov. 8, which would fall within the time frame of a July 15 vacancy.
Depending on what happens before July 15, GIS may or may not conduct a larger monthly poll with follow-up questions for 1,000 randomly selected voters.
Daily Transcript staff reporter Doug Sherwin contributed to this report.
Count Every Vote
New York Times, December 20, 2004 - Editorial
Every vote is supposed to count in America, but candidates too often maneuver to disqualify votes that they think might go to the other side. A month and a half after Election Day, battles are still raging in Washington State and in San Diego over whether to count all of the votes that were cast. The answer to that question must be yes.
In Washington's gubernatorial election, Dino Rossi, a Republican, and Christine Gregoire, a Democrat, finished in a virtual dead heat. With nearly 2.9 million votes cast, Mr. Rossi initially led by 261 votes. A machine recount took his lead down to 42. Ms. Gregoire requested a hand recount. During it, King County, a heavily Democratic area that includes Seattle, found 723 absentee ballots that had not been counted because election workers made errors like failing to verify the voters' signatures.
Republicans, fearing that those ballots would throw the election to Ms. Gregoire, have gotten a lower court judge to prevent them from being counted, at least temporarily. But there is no reason these ballots and other valid ballots that have turned up during the recount should not be counted. The right to vote cannot be taken away because an election official did not do his or her job correctly.
In San Diego, the No. 2 choice of the voters for the mayor's job may be headed to City Hall. Donna Frye, a write-in candidate, came within 2,108 votes of defeating Mayor Dick Murphy. But Ms. Frye's vote total does not include more than 5,500 ballots on which voters wrote her name, but failed to darken a bubble next to it. There can be no doubt that those voters, who would easily give Ms. Frye a majority, tried to vote for her, but were tripped up by poor ballot design. The voters' intent should be recognized.
In Ohio, where a recount of the presidential election is under way, it is becoming clear that as important as recounts are, they are not enough to ensure the integrity of our elections. Representative John Conyers Jr., a Democrat from Michigan, has charged that an employee of a company that makes vote-counting software used across the state may have tampered with one county's vote tabulator after the election to make the recount come out right. If people other than election officials have free access to the tabulation software, it can make a recount an empty gesture.
Clearly the American election system needs significant improvement, starting with voter-verified paper trails for every vote cast electronically. In the current flawed system, the best chance we have of producing accurate results is to be on guard for manipulation of electronic voting machines and tabulation software, and to conduct conscientious recounts when the outcome is at all in doubt.
The Frye Rebellion, Airdate: Fri., Nov. 26 & Sat., Nov. 27, 2004
from kpbs.org <http://www.kpbs.org/Radio/DynPage.php?id=1422>
The Donna Frye rebellion in our chaotic city election earns its own chapter in history.
It was outrage at the same old bungling of public affairs by self-obsessed career politicians. It was a resounding no vote against San Diego's two most prominent public officials.
Our system works when lazy voters become watchdogs and bite back.
The frye rebellion confirms the rising power of labor and the decline of this city's old guard. And our skepticism about advice from our own media.
It makes downtown more interesting for north county San Diegans who seldom bother to go South of Eight.
Andy Rooney said it was his first inkling that we could come in off the beach and gripe like city people.
This is no longer the old San Diego... that overlooked greed and paybacks for city hall favorites.
The new 2005 model of San Diego is more inclusive. It has a wider view.
We must demand that the mayor and council partner with the community... helping to recruit minds and money to reform a city that has lost its reputation... and its credit line.
The image of San Diego as beach resort has merged now with that of a university city... rich in science, adventurous research and knowledge... men and women who have come from around the world... drawn at first by the climate, and then by each other.
Mayor Murphy and other entrenched politicians have shrugged off offers from UCSD and others to help create neighborhood discussion groups... and offer modern technical and engineering support for the city.
Murphy is a college graduate, ...and a taxpayer. He understands the magic of such campus resources.
Yet city hall says, "No". The threat of outsiders looking over their shoulders gives politicians the willies.
With such bad habits, our enfeebled old guard and our stigmatic media don't understand that the new San Diego is growing away from them.
Their comfortable San Diego is gone.
Are they capable of serving our younger and far more worldly city?
Toward such a breakthrough goal, the Donna Frye rebellion is a warning to present leaders... and to those of us who elect them.
We can bring them down if we realize they are serving themselves rather than us. It's not them and us. It's all of us as a city, rising or falling.
They need watchdogs... and they will remember that we can blow Donna Frye's whistle again.
Two watchdogs are about to arrive at city hall...intending to restore order. Mike Aguirre, the aggressive new city attorney will be sworn in December 6. His aide will be another outspoken critic of city management, the attorney Pat Shea. You may remember Shea's wife Dianne Shippione, the whistleblower who forced the city to face it's financial nightmare.
These two men will land on city hall like a posse. The old cry will ring out again, "Remember Donna Frye"
Good News on Friday
Frye Update April 2, 2005
A federal appeals court rejected an appeal from one of the lawsuits that was filed against our write-in campaign.
According to an article in The San Diego Union-Tribune, "The case was brought by three voters who contended in federal court that by allowing Councilwoman Donna Frye to run as a write-in candidate, the city clerk violated their equal protection rights under the federal and state constitutions, as well as the city charter.
On Nov. 30, federal Judge Irma E. Gonzalez in San Diego declined to issue an order that would have halted the vote counting and certification of the election. Gonzalez ruled that the plaintiffs stood little chance of winning their case.
That decision was appealed, but in a terse, two-page order, the panel of judges concluded yesterday that Gonzalez did not abuse her authority or discretion when she made her ruling.
He said the next step is for Gonzalez to set a hearing forcing the plaintiffs to show why the case should not be dismissed.
The plaintiffs might also be able to seek a hearing in front of a larger panel of judges to keep the case alive. Blair Krueger, the attorney who filed the case on behalf of voters Shan McDonald, Jerri Walters and Jennifer Cassidy, could not be reached for comment yesterday."
Appeal to be heard in Orange County
By Greg Moran,UNION-TRIBUNE March 22, 2005
The appeal of a challenge to the victory of Mayor Dick Murphy in the November 2004 election will be heard by an Orange County appeals court.
The case, which combined two sets of challenges to Murphy's win from supporters of second-place finisher Donna Frye, was transferred Friday from the 4th District Court of Appeals in San Diego.
The case will now be heard by the appeals court division in Santa Ana. Both courts are part of the 4th Appellate District, being two of the large district's three divisions.
The order cited a court rule that allows multiple appeals from the same trial to be sent to another court that has heard previous appeals on the matter.
Supporters of Frye, who mounted a last-minute write-in campaign, challenged Murphy's narrow win. They contended that 5,551 ballots on which Frye's name was written in but a corresponding oval bubble was not marked should be counted.
County elections officials declined to count those ballots, citing a state law that says only write-in ballots with the oval marked can be counted.
That position was upheld after a three-day trial in February in front of Superior Court Judge Michael Brenner. He was a trial judge from Orange County who was assigned to hear the case to avoid any perception of bias. Murphy was a San Diego Superior Court judge before being elected mayor in 2000. No dates have been set in the appeals case.
The San Diego Union-Tribune couldn't be more wrong. The very nature of leadership of a city this size is facing up to an ever-changing mix of "distractions."
Below you will find the text of an editorial in 2/5/05 UT.
The editorial argues that litigation over the Frye votes is "a distraction the city does not need." The editors then follow up on their point by asking and answering what the editors apparently believe is the crucial question that all good citizens of San Diego should be asking of themselves: "But where does further arguing leave the citizens of San Diego? Certainly not close to having the serious problems facing the city and threatening their quality of lives addressed."
As is often the case with the editors of The San Diego Union-Tribune, they couldn't be more wrong. First, the very nature of leadership of a city this size is facing up to an ever-changing mix of "distractions."
There are always, that is, going to be significant issues confronting any mayor of San Diego that are inherently peripheral to keeping the city safe, clean, and otherwise seeing to it that San Diego provides a productive, healthy environment in which to live and raise children.
The question, therefore, isn't whether an issue is a distraction from the fundamental goals of city government, the question is whether an issue is one that must be addressed and resolved in order that our city government be as honest and efficient as well as promote as vigorous a democracy as realistically possible.
The real question, therefore, distractions being inevitable, is whether litigation over the uncounted Frye votes promotes or detracts from a healthy democracy?
Naturally, the UT editors don't ask that question since the answer is so obvious. After all, this litigation isn't about some obvious and gross violation by voters of the rules. Rather, in this case 5,551 San Diego voters cast their votes for Donna Frye in full compliance with a City of San Diego election rule that states that if a voter wrote in the name of Donna Frye on the line provided on the ballot that that vote “shall be counted.”
So, it isn't just that Donna Frye received over 3000 more votes than Dick Murphy, its that every voter for Donna Frye was full and total compliance with every single city rule governing the election of the Mayor of the City of San Diego.
Never in the history of California, and so far as research to date has uncovered, never in the history of any election in the United States, have the courts ever been presented with such a case. There are many cases that nibble around the edges, but this case is fundamentally unprecedented.
That reality was acknowledged again and again by the trial judge, Judge Brenner, who on many occasions stated that he did not anticipate being the last voice who spoke on these issues, i.e., he fully anticipated an appeal.
The decision whether or not to appeal has not yet been made. Nevertheless, the issues in this Frye/Murphy vote case are fundamentally legal in character and cry out for review by an appellate court and even the California Supreme Court.
The case, that is, may be a “distraction” as that term is used by the editors of the UT. That point isn't worth arguing about. What is worth arguing about is whether California law properly denies 5,551 San Diego voters the validity of their vote when they complied to the letter of city law governing the election of a city official.
—Bruce Henderson
Time to end it, Challenges in mayor's race should cease
February 5, 2005, Union-Tribune Editorial:
The city of San Diego is facing serious challenges that require the full attention of its elected officials. At the top of the list is the $1.4 billion pension fund deficit, which is impacting just about every financial decision the city has to make. The pension crisis and the city's finances have sparked at least two federal investigations. Then, there are the separate indictments and coming trials of two City Council members. A radical change in the political and administrative structure of City Hall is about to take place. And this list does not get us to the day-to-day problems that any large American city faces.
That brings us to a distraction the city does not need: further litigation in the mayor's race. Given the unusual circumstances surrounding the race – Councilmember Donna Frye's last-minute write-in candidacy and the 5,551 uncounted votes for her – we felt some of the legal challenges appropriate. But there have been five decisive rulings in favor of Mayor Dick Murphy. In none of the rulings did the judge signal any sign of hope for future litigation.
Sure, Frye can argue that she received the most votes. Murphy can argue that he is the legitimate mayor of San Diego. But where does further arguing leave the citizens of San Diego? Certainly not close to having the serious problems facing the city and threatening their quality of lives addressed.
The one thing that can be controlled is further distracting litigation. While it is true that Frye herself has not been a party to any of the legal challenges brought so far, a signal from her that she does not support further lawsuits likely would stop them.
It's time to move on. Murphy has been politically weakened by circumstances of the election, but he is the duly elected mayor. Frye has earned a place in the leadership ranks of the city, but the political goodwill she has built up could erode if she doesn't signal an end to the challenges to the November election.
Mayor Race Case: Judge Brenner's analysis is that he makes a leap in his logic
Below is the UT article. Judge Brenner started with the proposition, on which we all agree, that the City and its Council has plenary authority under the California constitution over City of San Diego municipal elections (e.g., elections of city officers such as the mayor). Next, Judge Brenner concluded that the city has, therefore, the authority to consolidate a municipal election with a state election. Judge Brenner then went on to conclude that when a consolidation occurs, state rules apply; and, therefore, the bubble had to be filled in.
One important problem with Judge Brenner's analysis is that he makes a leap in his logic.
Once Judge Brenner agrees that the City has plenary authority over municipal elections, logic requires that he examine the city's charter, because that is the city's constitution. Judge Brenner in his opinion, however, declined to examine the charter. That is, instead of examining the city charter provisions, he moved immediately to state law.
By structuring his analysis in that fashion, Judge Brenner was able to ignore and, therefore, Judge Brenner declined to address the key argument that leads to counting all the votes.
In short, the city charter in section 8 states in pertinent part that "the Council shall adopt an election code ... providing an adequate and complete procedure to govern municipal elections.... All elections provided for by this charter, whether for choice of officers or submission of questions to the voters, shall be conducted in the manner prescribed by said election code ordinance."
So, the city charter, a constitutional document adopted by the voters and which can only be amended by the voters, commands the Council to exercise its plenary authority over city municipal elections, such as the election for mayor, by creating a "complete" procedure" to govern these municipal elections.
The City Municipal Code, which Judge Brenner ignored in his decision, in fact establishes a complete procedure for municipal elections. Among those procedures, Municipal Code section 27.0636 states in pertinent part that: "Write-in candidates are permitted in all municipal elections and special elections. Any name written upon a municipal election or special election ballot, including a reasonable facsimile of the spelling of such name, shall be counted for the office for which it was written, if it is written in the blank space provided therefor, ...."
So, what we have here is a mandate under the city Charter that if city voters voting for a city officer in any election do two things, and only two things, namely (1) write-in a name of a candidate (2) on the line provided therefor, then the city charter and the city Municipal Code guarantee that city voter that his or her vote "shall be counted."
It is this right of city voters created by the city Charter and the city Municipal Code that Judge Brenner declined to address in his decision. He simply ignored it by moving from the fact that the Council had consolidated the city election with the state election to the state rule, the Bubble Rule, which denies city voters the right to have their vote counted if they comply with the city Charter/city Municipal Code voting rule.
What is missing, therefore, from Judge Brenner's decision, is a legal analysis of the authority of the Council to deprive city voters of specific rights merely by the Council deciding to consolidate elections.
That is, logically, even if the Council has the authority to consolidate elections, the election of city officers continues to remain subject to city procedural rules because the city Charter says "all" the elections of city officers are governed by city procedures. Nothing in the Charter and nothing in the Municipal Code, directly or indirectly, modify this mandate.
The bottom line is that if you analyze the city Charter and acknowledge its mandate, the Frye votes without bubbles have to be counted. The only way to avoid that result is to ignore the Charter by arguing that it is irrelevant because the City has plenary authority to consolidate elections. The problem with the logic is that it is that same plenary authority that permits the city to enact Charter section 8 and create mandatory rules regarding the counting of write-in votes.
For me, therefore, there is a logical leap. Judge Brenner asserted that once the Council consolidated the elections the city Charter could be ignored. However, the Council can never ignore the Charter because it governs their every action. The Charter is the constitution of the city adopted by the people. The Council is bound by it and must, as a matter of law, comply with Charter mandates.
It follows, therefore, that I heard nothing from Judge Brenner that leads me to believe that other reasonable judges might not differ with Judge Brenner's decision. — Bruce Henderson
Attorney
appeals ruling to not count 'unbubbled' votes
By KEVIN CHRISTENSEN,
The Daily Transcript, February 24, 2005
Excerpt:;
Beginning perhaps
another chapter in the "Who is Really San Diego's Mayor" saga, an appeal
was filed Thursday challenging a judge's decision to not count "unbubbled"
votes.
Santa Monica-based attorney Frederic Woocher filed the appeal, which
seeks to overturn a ruling in San Diego Superior Court declaring Murphy the winner
on Feb. 2.
The Outsider
The Nation, by ABBY AGUIRRE, March 21, 2005 issue
San Diego grew up as a Navy town, and has historically been defined by a conservative political culture. It was Richard Nixon's "lucky city" in 1972. And it is where, in 1996, the Republican Party convened to nominate Bob Dole for President. Exactly when things started to change on the ground is a matter that depends on whom you ask. (For instance, I will tell you that as recently as the late 1980s, when I was in the fifth grade at a San Diego public school, the teacher asked the class to raise our hands if our parents were Republicans, and all but my and one other kid's hands went up.) But one definitive moment in San Diego's political development will be easy for future civic historians to pin down. It happened a few months ago, when a gadfly City Council member, environmentalist and surf-shop owner named Donna Frye announced her write-in candidacy for the city's mayoral race at the eleventh hour and earned more votes than the other two candidates, both Republicans.
Frye's turnout surprised San Diego voters partly because, from a practical standpoint, the odds were stacked against her. She was a school-of-hard-knocks candidate competing against a Harvard-educated former judge and a county supervisor who had served two terms on the City Council. (Though Frye does have an associate's degree and some fifteen years' experience running her own business, you are more likely to read about her life as a hotel maid, gas-station attendant, short-order cook and recovering alcoholic.) She was a political outsider, and she cobbled up a grassroots campaign that in today's terms was conspicuously light on rhetoric. Not to mention that she had only five weeks to convince the electorate to vote for Donna Frye, a name they might not have heard before and would not find on the ballot.
But Frye's turnout surprised people mostly because she was a progressive running against two establishment Republicans in what is thought to be a conservative stronghold (it is, after all, the city that gave the world Tucker Carlson). And because she managed to rouse a ground-up movement in a town that often seems content to enjoy its climate and leave the bother of political involvement to bigger, more troubled cities.
"It was a series of surprises," said Frye, sitting cross-legged on the floor of the home in which she grew up, which she now shares with her mom and husband, legendary surfer and longboard shaper Skip Frye. Apart from the fact that she doesn't drive, Frye is every bit the Southern Californian: Her long blond hair is parted down the middle, her face lined from fifty-two years in the sun. "When I announced that I might consider running, the phones went crazy," she said. "Calls of support came from all over the city." At first she thought it was a few hundred people, but when Frye went out to collect the 200 signatures needed to establish her candidacy, she got more than 3,000 in one weekend.
Throughout her short campaign, Frye was bowled over by the hundreds of strangers, "people I'd never seen in my life," who came out of the woodwork to volunteer. To her longtime friend and legal counsel Marco Gonzalez, it was obvious Frye had a populist appeal. "When you go out on the streets, the amount of support that she has is unmatched," he said, "and it doesn't follow normal political or demographical lines." Since Frye didn't have yard signs, local artists contributed designs and a handful of printing shops in the city offered discounts to supporters who wanted to make copies. Still, despite the extraordinary enthusiasm she inspired, not even Frye would have guessed she'd take the lead in a race too close to call.
When she did, the surfing metaphor proved irresistible to the national press: "Surf Shop Owner Rides Mayoral Wave" (Boston Globe); "Riding a Write-In Wave to the Brink of City Hall" (New York Times); "Writing the Wave in San Diego" (Washington Post). But Frye insists much of the coverage got her backwards. "I'm not a surfer who dabbles in politics. I'm an activist who dabbles in surfing, and I was never that good at it."
Frye was a teenager in the late 1960s, and, like many of that generation, she describes her political awakening in a kind of shorthand: "You know, civil rights, Vietnam, women's issues, voter registration." During the 1970s and '80s, she counseled rape survivors and battered women, a line of work she had to give up. ("It was breaking my heart too much.") As a technical editor for the Navy she tried, unsuccessfully, to organize a labor union. But it wasn't until Skip got a viral infection from surfing in the Pacific Ocean in the 1990s that Frye became a regular at City Hall. She routinely waited hours to give minutes of testimony about the poor water quality at popular city beaches. When elected officials were slow to respond, Frye, armed with disturbing bacteriological reports, held press conferences in front of the storm drains she believed were bringing sewage to the sea. She was right, and her efforts led to a significant strengthening of San Diego's water-monitoring and warning systems.
Frye started bringing her politics into the surf shop. "I was trying to figure out how to get surfers registered to vote," she explained. "I thought: humor." She set up a display of a toilet that when flushed played an answering-machine message pleading customers not to flush the ocean down the drain. Soon after, GOP Congressman Brian Bilbray voted to gut the Clean Water Act, after claiming to be a surfer. "So we made it an educational toilet about the Congressman's voting record."
A City Council member since 2001, Frye has often been on the unpopular end of lopsided votes. On allowing further expansion of the Sea World theme park, the Council voted 8 to 1; on the use of public money to subsidize a new baseball stadium for the San Diego Padres, 8 to 1; and on a number of votes permitting the city to invoke its power of eminent domain for private development, 8 to 1. She has criticized what she calls a "culture of secrecy" at City Hall and boycotted the Council's secretive closed-session meetings. "My agenda for the city is pretty easy to understand," she explained. "Tell the public the truth, do the public's business in public." And to those who think her an unlikely public figure, she has this to say: "You can't live here and not have an affinity for the natural environment, and you can't love the natural environment, the ocean, and not care about what's been happening politically in this city."
As it turns out, San Diegans urgently need someone who cares about what's been happening politically in their city. On the heels of the devastating October 2003 wildfires, which exposed, along with 300,000 acres of scorched ground, the city's failure to staff and outfit its fire department adequately, came indictments of three Council members accused of taking bribes from Las Vegas club owners to loosen San Diego's no-contact rule at strip clubs. More recently, a plan to increase benefits for city workers and underfund pension accounts put San Diego $1.2 billion in the red and prompted investigations by the FBI, the US Attorney and the Securities and Exchange Commission, earning the city the nickname "Enron-by-the-Sea." Once again, Frye was the only Council member to vote against the plan.
In other words, Donna Frye stood for something at a critical, and dismal, moment in local politics. Yet her success has also forced the city and country to wake up to what she apparently has known for some time: "San Diego is not a conservative city," she argues. "It may have been conservative at one time, maybe fifteen years ago, but not anymore."
The evidence is there. San Diegans have voted Democratic in the last three presidential elections. San Diego's state delegation is mostly Democratic. And though Republicans still have a voter-registration edge over Democrats in the larger San Diego County, Democrats outnumber Republicans in the city itself. If not an overwhelmingly Democratic city, it is certainly a moderate one, with what might be called a budding progressive movement, observable on two main fronts.
Foremost are the environmental groups. Founded in San Diego in 1980, the Environmental Health Coalition (EHC), one of the country's oldest grassroots environmental-justice organizations, has secured the preservation of more than 2,000 acres of coastal wetlands; published the first comprehensive pollution-prevention guide designed for local governments; pushed for policy banning the use of toxic pesticides adjacent to low-income, Latino communities; and convinced the EPA to award San Diego one of the nation's first "Emerging Brownfield" grants to relocate polluting industries outside residential communities. (Donna Frye's campaign manager and senior policy adviser, Nicole Capretz, was once a legal and policy analyst at the EHC.) The city's environmental movement also has strong roots in the surfing community, a crowd popularly thought of as escapist and apolitical. Frye, for example, founded Surfers Tired of Pollution (STOP) and is involved with the Surfrider Foundation, a grassroots group that works to protect oceans, waves and beaches.
Historically nobody's idea of a union-friendly town, San Diego now has an active labor movement. This is thanks in large part to the aggressive direction of Jerry Butkiewicz, secretary treasurer since 1996 of the San Diego-Imperial Counties Labor Council, an AFL-CIO umbrella for more than 100,000 union workers (41 percent of whom are Hispanic) and more than 100 affiliated labor groups. "We retooled our political program in order to mobilize our own members," said Donald Cohen, former political director of the Labor Council and current director of the Center on Policy Initiatives, a research and policy group that works with organized labor. Unions have also become more active in local political campaigns. A report has yet to be compiled for the most recent election, but in the two previous election cycles, unions outspent business in the independent-expenditures category by more than two to one. For her part, Frye won the single most important labor endorsement, that of the Labor Council.
Undeniable, too, are San Diego's shifting demographics. According to Census data, the Hispanic population increased 47.1 percent in the San Diego region between 1990 and 2000, when it became official that one in every four San Diego residents is of Hispanic origin. Frye earned key endorsements from the San Diego Chicano Democratic Association and two prominent Spanish-language newspapers in the city. There are no hard statistics to cite, but Daniel Muñoz Jr., editor of the city's oldest Mexican-American newspaper, La Prensa, thinks more Hispanics voted for Frye than for her opponents. "The other two candidates didn't speak to the issues of the community," he said.
Perhaps the least surprising aspect of this story is the ballot-counting controversy that followed. Of the voters who took the trouble to write in Frye's name, 5,551 did not darken a corresponding bubble, and their ballots were disqualified. The incumbent, Dick Murphy, was pronounced the winner by 2,108 votes and sworn in on December 8. The last legal challenge was rejected on February 2, leaving an appeal the only possibility for reversal.
So Donna Frye is not the mayor of San Diego, and Dick Murphy and his lawyer are left insisting, against all evidence of the voters' clear intent, that on account of a technicality the disputed ballots are simply "illegal." Which is why some are saying that losing the election might be the best thing that ever happened to Frye. After all, she is the moral winner--she earned the most votes and in many eyes is the city's rightful mayor. The New York Times thinks so; the Los Angeles Times thinks so; even the San Diego Business Journal thinks so; and certainly a plurality of San Diego voters thinks so.
At the very least, Donna Frye became, if not mayor, one of the most influential political figures in California's second-largest city. Those who work with her say the difference is already palpable, even in Sacramento, where, once dismissed as just another liberal environmentalist, her name now commands respect. "She's much more viable as a politician," said Marco Gonzalez. "And the big change is going to be that now, every time she comes out and voices the lone opposition on the Council, it's going to make everyone stop and take pause."
Asked whether, if the election is ultimately not reversed, she will make a play for the mayor's office in four years, Frye seemed uninterested in talking about the future. "I never know what I'm going to do," she said. "I don't plan. I just do what comes naturally."
Attorney appeals ruling to not count 'unbubbled' votes
By KEVIN CHRISTENSEN, The Daily Transcript, February 24, 2005
Beginning perhaps another chapter in the "Who is Really San Diego's Mayor" saga, an appeal was filed Thursday challenging a judge's decision to not count "unbubbled" votes.
Santa Monica-based attorney Frederic Woocher filed the appeal, which seeks to overturn a ruling in San Diego Superior Court declaring Murphy the winner on Feb. 2.
Bob Ottilie, Murphy's lawyer who prevailed in the original case, said this appeal is bad for the city.
"People have a right to appeal," Ottilie said in a prepared statement. "It's unfortunate that these folks will not put the best interests of the city ahead of their personal political agenda."
The case before the bench pits state and local election codes against each other. At issue are 5,551 disputed ballots -- and hence, the election. The ballots, identified during the last court case, are in dispute because voters wrote in Donna Frye's name but neglected to color in the corresponding bubble.
According to California state election code, the corresponding bubble must be filled in for the vote to be counted.
Judge H. Michael Brenner, from Orange County, presided over the matter after San Diego judges were recused. Murphy is a former Superior Court Judge.
Brenner ruled that Murphy would remain mayor because the San Diego City Council consolidated the election with the state election on July 26. Under this agreement, the state election code trumped the municipal code.
Woocher said his legal team is in a better position because the case had already been tried once.
"In some ways we are almost better off now," he said. "I think it's a very useful purpose to get the facts out there and now have a record to go to the court of appeal with."
Woocher, who represents three Frye supporters, said he has not been paid for the last trial, but noted that a nonprofit organization, County Every Vote - San Diego, has been established to collect donations.
Meanwhile, Murphy has set up legal defense fund accounts at the city and is collecting donations -- up to $250 per account -- to fund his legal effort.
As previously stated, my clients had decided that they would only appeal if Fred Woocher and his firm concluded that the appeal was meritorious and on that basis filed an appeal for their clients. We, of course, agree with Fred's conclusion that this matter must be appealed, and we will file our own appeal immediately.
Re-election
of Murphy will stand, judge rules, Quick decision turns aside challenges in mayoral
race
By Greg Moran UNION-TRIBUNE STAFF WRITER, February 3, 2005
Judge Michael Brenner gestures in court.
A judge upheld the disputed re-election
of Mayor Dick Murphy yesterday, sweeping aside two challenges that sought to overturn
the results because more than 5,500 ballots were not counted. The speedy ruling
by Orange County Superior Court Judge Michael Brenner capped a three-day trial
in which supporters of Councilwoman Donna Frye, a write-in candidate, argued that
the election was tainted because of erroneous and unfair vote-counting procedures
by the county registrar of voters.
But in a ruling delivered minutes after
closing arguments, Brenner calmly demolished each argument raised by the challengers.
The
case centered on 5,551 write-in ballots for Frye. They were not included in her
count because voters failed to shade in a small oval bubble next to the write-in
slot. State law – Elections Code Section 15342(a) – requires that the
bubble be shaded in for a write-in vote to count.
Although the results of the
Nov. 2 election hung in the balance, Brenner said the legal issue was not that
complicated.
"I find that Elections Code 15342(a) should be given its
plain meaning," he said. "What it means is what it says: To vote, to
cast your vote, you have to fill in the oval."
In his ruling, Brenner
said that those who wrote in Frye's name but did not shade in the oval were doing
nothing more than "augmenting" their ballots.
"Those people
did not vote, so those ballots should not be counted," he said. "The
challenge fails."
The ruling is the latest in San Diego's epic, postelection
litigation battle, which has spawned five lawsuits in state and federal court
– none successful. It is, however, almost surely not the last word.
Attorney
Fred Woocher, whose lawsuit on behalf of three voters challenging Murphy's election
was joined with a similar challenge from two voters represented by San Diego attorney
Bruce Henderson, all but promised that an appeal would be filed.
"Going
into this, I think it was our expectation this would not end at the trial court,"
said Woocher, a Santa Monica lawyer who specializes in election law and was a
Clinton administration nominee for federal judge.
Murphy said he hopes there
will be no appeal and in a news conference called the judge's ruling the "correct
interpretation of the law." He said the legal challenges should not cast
a cloud over his next four years in office.
"I'm willing to follow the
court's ruling that said that I got the most valid votes," Murphy said. "Somebody
has to decide that. I don't think I'm going to spend a lot of time dwelling on
that issue."
Frye said she feels "sort of amazement and sort of frustration
and probably very great disappointment" – not for herself, but for voters.
"What
do you say to voters who came out with a little 'I Voted' sticker and they went
home and they think they voted?" she asked.
Murphy defeated Frye by 2,108
votes out of more than 450,000 cast. After the results were certified, Woocher
and several media outlets, including The San Diego Union-Tribune, paid for a review
of the ballots, which turned up the thousands of unbubbled votes.
If they had
been counted, either by Registrar Sally McPherson or by order of Brenner, Frye
would have defeated Murphy by 3,443 votes.
Frye, who was not part of the challenges,
has never formally conceded to Murphy. Last night, she seemed to think doing so
was unimportant.
Asked if she would concede, Frye said: "Concede what?
He's the mayor." She also said "everybody knows" that more people
"voted for me than for the other candidates."
Murphy said a call
from Frye conceding the election would be nice, but added, "I'd be happy
to just move on together to address the issues."
Woocher and Henderson
pressed their challenges on several grounds. During the trial, they contended
that the city's municipal code controlled the rules for the election.
A section
of the code says that all write-in votes in city elections shall be counted if
the name is written in. There is no requirement to shade anything in.
San
Diego's rules should prevail over the state's rules, they argued, because the
state constitution grants absolute powers to charter cities when it comes to running
elections, one of four "core" powers such cities enjoy.
But Bob
Ottilie, the lawyer for Murphy who has represented him in all the lawsuits, argued
that the City Council on July 26 voted to consolidate the election with the statewide
race, and hired the registrar to conduct it.
When that happened, the state
elections code – and the bubble rule – governed the race, he said.
Henderson argued that the ordinance passed by the council did not explicitly tell
the registrar not to conduct the election under city rules, and Woocher warned
that to read the ordinance the way Ottilie did would effectively wipe out the
section of the municipal code covering elections.
Brenner was unimpressed.
He agreed that the city has power over its elections, but said the City Council
legally delegated that authority to the registrar with the July 26 action. Doing
so brought the state code into play.
That focused the case on the now-infamous
oval bubbles. The bubbles are used so that an optical-scan voting machine can
quickly read and tabulate all votes.
The technology was used for the first
time in San Diego for some ballots in the March primary, and used for the first
time in a general election in November.
Woocher contended that rejecting the
unbubbled ballots served no purpose because the votes were tabulated by hand in
the recount. He also argued that the legal standard is different for recounts.
In those cases, he said, it is the intent of the voter – not technical compliance
with the law – that is the "touchstone" and "guiding star"
in recounts.
But Ottilie argued that there is no different standard for recounts
and that allowing one would create problems. He defended McPherson's actions,
saying she had no discretion under the law to allow the unbubbled votes since
they were not cast in accordance with state law.
McPherson testified over
parts of two days as Woocher grilled her about individual ballots and the decisions
she made. He tried to show that she was inconsistent in how she treated the ballots.
Woocher produced ballots with checks, crosses or X's in the bubbles that were
counted as votes. He said there also were ballots on which the oval was circled
and the vote counted, even though the state law says the oval must be shaded in.
But he added that some write-in ballots that similarly did not strictly comply
with the law were rejected. Some voters crossed out the names of Murphy and third-place
finisher Ron Roberts and wrote in Frye's name, but those ballots were not counted
– even though, as Woocher contended, the voter's intent was as clear as the
ballots with checks or crosses in the bubble. "There is no magic rule that
says you need at least a dot in the oval to have the vote counted," Woocher
told Brenner, an Orange County judge hearing the case after the local bench was
removed because Murphy is a former San Diego judge.
But the judge disagreed.
He said McPherson was "right on the money" and had been consistent in
her reasoning that a mark in the bubble of any kind qualified the ballot as a
vote.
The judge also said the state has a keen interest in reasonable regulations
for voting and that the bubble rule was not onerous. "It requires a very
small burden on the voter," he said.
Finally, Brenner noted that McPherson
had widely publicized a month before the election that voters would have to fill
in the bubble. Moreover, Frye's campaign and others were aware that McPherson
was not planning to count unbubbled votes, and therefore "this issue could
have been raised prior to the election."
Court challenge to San Diego mayoral election begins
MICHELLE MORGANTE, Associated Press Writer, January 31, 2005
SAN DIEGO (AP) --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 copies of 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.
Woocher questioned his first two witnesses, McPherson and Assistant City Clerk Joyce Lane, who noted several examples of city laws that were applied to city elections, even though they contradicted state laws.
The hearing will continue Tuesday.Bruce Henderson… Breaking the Mayoral Myths
On Thursday, December 30, 2004, on behalf of two clients, Steven Currie, a Libertarian, and Lou Conde, a Republican and former member of the San Diego County Board of Supervisors, I filed an Election Contest pursuant to California Elections Code §16100 challenging the certification of the election of Dick Murphy as Mayor of the City of San Diego.
We now know that in the November 2, 2004, election some 161,398 citizens voted for Donna Frye by writing her name in on the ballot on the line provided. That compares to 157,959 votes cast for Dick Murphy and 155,851 cast for Ron Roberts. Of course, as we know, voters who cast 5,547 of the Frye votes didn’t take a second step of filling in a bubble with the result that the Registrar did not certify those votes.
The result is obvious. There is no question that more San Diegans voted for Donna Frye than voted for any other candidate. The legal issue is just as obvious. Will the courts require that the non-bubble votes cast for Frye be added to her certified total? If so, Donna Frye will soon be serving as the Mayor of the City of San Diego.
Over the weeks since the election, a number of urban myths have developed the question of whether or not the law requires all the Frye votes to be certified, with or without the bubble.
Myth: The 5,547 Frye voters who didn’t fill in the bubble didn’t follow the rules so their votes can’t be counted as a matter of law.
Correction: Like many urban myths, there is some truth here. The state rules require voters to take two steps, the first is to fill in the name of the write-in on the line provided. The second is to fill in the bubble. However, the San Diego Municipal Code rule states that if the voters take only the first step and fill in the name that their votes “shall be counted.” So, it will be argued that the voters did follow the controlling rule.
Myth: The legal issue is whether voter intent trumps election rules.
Correction: The question isn’t whether intent trumps the rules. The question, instead, is which rules govern or are enforceable. Aside from the issue mentioned above, consider that enforcement of the second requirement of the state rule results in an error rate of exceeding 3.4% and invalidates 5,547 Frye votes. This error rate is extraordinary. A recent study headed by past presidents Ford and Carter concluded that any error rate in an election above 3% should never be tolerated. So, another legal issue is whether a state rule, enacted not to demonstrate voter intent but only to save money, that generates an error rate of 3.4% violates fundamental constitutional rights to have one’s vote counted, of due process, and of equal protection.
Myth: State election rules always trump local rules.
Correction: While the usual rule is that state law trumps city law, San Diego is a “charter city.” Under the California Constitution charter cities have special powers including the “plenary” power over their own elections. Considerable case law has dealt with this issue. The rule is longstanding and uniformly enforced. Where a charter city election law conflicts with a state election law that is procedural in nature, the charter city rule prevails. See, e.g., Trader Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37.
Myth: The City Council agreed to submit to state rules when it consolidated its election with the state general election on November 2, 2004.
Correction: When the City Council passed its resolution in August 2004 asking the Board of Supervisors to consolidate the city general election with the state’s general election, there was absolutely no mention of waiving any city rules or otherwise submitting to conflicting election rules of the state. Moreover, nothing in the San Diego election laws permits the City Council to waive rights of voters under those laws. The state law does say that state law governs in a consolidated election; however, as mentioned above the question remains as to whether or not that state law is enforceable.
Myth: The League of Women Voters lawsuit lost on the bubble issue, so the issue has already been decided.
Correction: It is true that the judge in the League case was of the opinion that the Frye votes without a filled in bubble shouldn’t be counted. However, the only actual holding in the case was that the plaintiffs had no standing and the court, therefore, had no jurisdiction. The various legal issues mentioned previously were not briefed or argued in the League case and so not addressed. The trial judge merely noted the unremarkable fact that the law in California is that voter intent does not trump election law rules.
Myth: All the legal issues have been litigated and any Election Contest will be nothing more than a retread of rejected claims.
Correction: The above remarks constitute the refutation of this myth.
What’s Next?
Pursuant to the Elec. Code voters who desire to contest the election of Dick Murphy have thirty days to file an Election Contest, the last date appearing to be January 6, 2005.
Once the thirty days passes, the Clerk of the Superior Court notifies the court of all contests that have been filed. The presiding judge (Judge John S. Einhorn) is required to “forthwith” issue an order designating the time and place of a hearing will cannot be less than 10 days nor more than 20 days from the date Judge Einhorn issues his order.
It is reasonable, therefore, to assume that the initial hearing on the contests that are filed by January 6 will be held by the end of January.
Once the hearing is concluded, the court must issue a ruling within ten days. If the court determines that all the Frye votes should have been counted, the court would declare Donna Frye elected and she would immediately assume the office of Mayor. An appeal can be taken, but during the course of the appeal, Frye would continue to serve as Mayor.
San Diego City Attorney Opinion
An opinion is expected in the near future from the San Diego City Attorney. However, the specific issues being addressed have not been announced, and no specific date has been set for issuance of the opinion.
Jan. 12, 2004, the California Supreme Court rejected the plaintiff's petition for review in the McKinney case. The Court of Appeal in that case held that McKinney had attempted to utilize a remedy available only if a case is filed pre-election. The Court of Appeal went on to state that no review would be conducted by the court of the question of whether the Frye votes without bubbles should be counted.
The League case was not appealed and the McDonald case, filed in federal court, is on appeal, an appeal which I have no reason to believe has any better chance than McKinney had.
More
From: Bruce Henderson, Date:
December 19, 2004
Included below is a copy of an article on the front page
of The San Diego Union-Tribune entitled “Mayoral fight echoes a case in Bay
Area; Run for Congress stymied by wrongly marked ballots.”
The problem
with the article is that when you examine the opinion of the City Attorney of
San Francisco in the matter you quickly discover that the matter addressed in
San Francisco is comparable to the situation in San Diego in only a highly limited
sense.
The rule followed in San Francisco was the general rule in California
that in consolidated elections with ballots with bubbles a write-in vote requires
that the voter both fill in the name as well as fill in the bubble.
The question
asked in San Francisco was, all other things being equal, was that the general
rule in California? The answer was, of course, yes.
As I pointed out, and
as I repeat below, in San Diego a very different issue is presented. Unlike San
Francisco, here in San Diego, the San Diego City Charter and Municipal Code specifically
provide that the election procedures in San Diego are that a voter who writes
in the name of a write in candidate shall, without more, have that vote counted.
So,
unlike San Francisco, here in San Diego there is a dramatic conflict between state
law and San Diego law. While it may be counterintuitive, when it comes to
elections law the rule in California is that a charter city’s law prevails
over state law in all matters other than those involving fundamental constitutional
rights of free speech, etc.
What was not true in San Francisco, but is true
in San Diego, is that if the election had been conducted by the City Clerk the
5,547 votes cast for Donna Frye without bubbles would have been added to her verified
total so that she would have won the election by a margin of 3,439 votes.
In
San Francisco there is no indication that it would have made any difference which
election official conducted the election as there was no cited conflict between
state law and the election law of the City and County of San Francisco.
Therefore,
the situation in San Francisco and the legal outcome is, as a substantive matter,
irrelevant to the fundamental issue here in San Diego.
Nothing in the article
in The San Diego Union-Tribune, however, deals with this fundamental difference
in the legal issues so that the questions asked of those quoted ignored the key
question here in San Diego, a question that has never been specifically addressed
in any case of which I am aware.
None of this is to say that the legal
conclusion in San Francisco was correct. Rather, the point is that the rule in
San Francisco, even if applied here, does not resolve the question in San Diego,
a question that I believe is, under existing case law, quite easy to resolve such
that all the disputed Frye votes must be counted. That is the reason that I have
concluded that Donna Frye was elected and will soon be sworn in as mayor.
To
go back over my the points in my email of December 17, the reason for my conclusion
is that the issue in San Diego, as opposed to other general law cities or counties
or charter cities or counties in California, is purely an issue of law, namely,
does California Elections Code section 15342 (to cast a valid vote for a write-in
candidate the voter must both write in the name on the line provided and, as well,
properly mark the respective bubble) trump the San Diego City Charter and Municipal
Code?
However, in a number of key respects, all things are not equal. Most
important, and so far as I can determine the definitive factor is that the San
Diego City Charter (sections 8 and 9) and Municipal Code (section 27.0636), unlike
state law, guarantee to San Diego voters that their vote for a write-in candidate
in an election for any city office will be counted if the voter writes in the
name of the write-in candidate on the ballot on the line provided. Nothing more
is required.
That is, the City's laws mandate that Frye's 5,547 votes shall
be counted regardless of whether or not the bubble was filled in. In short, had
this election been conducted by the City Clerk (as is the special election in
District 4), Donna Frye would by now have been sworn in as San Diego's mayor.
What
happened was that when the City consolidated its November election with the state
general election, the Elections Code provides that state procedures govern. So,
which law prevails, state law requiring a bubble and so favoring Mayor Murphy's
position or the City's law under which Donna Frye would be mayor?
The answer
to that question seems straightforward. Since charter cities were created in California
well over one hundred years ago, the rule has never varied: charter city election
laws and election procedures prevail over state law in all but the most extraordinary
circumstances.
A recent application of this rule that charter city election
laws procedures prevail was discussed in considerable detail in the case of Trader
Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37. What follows
are several paragraphs (slightly edited) from that opinion in which, in my opinion,
the court makes it clear why all the Frye votes are valid. If this rule controls,
as I think it does, Donna Frye will soon be sworn in as mayor of our fair city.
*
****
Trader Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37:
We
conclude that, as a charter city, Government Code section 53724 [part of Proposition
62, a statutory initiative adopted by the voters of California in 1986] cannot
override San Leandro's core constitutional authority over the conduct of its local
elections. (See Cal. Const., art. XI, § 5, subd. (a).) Accordingly, we affirm
the trial court's judgment in favor of San Leandro because the two-thirds vote
requirement of section 53724 is superseded by San Leandro's charter and municipal
code, which allows a tax measure to be placed on the ballot by a simple majority
vote of the City Council.
Our Constitution is most explicit. The "conduct
of city elections" is one of the few specifically enumerated core areas of
autonomy for home-rule cities. (Cal. Const., art. XI, § 5, subd. (b).) fn.
2 A statute purporting to define the number of votes required for putting a local
tax measure on the ballot [93 Cal.App.4th 47] contravenes this explicit constitutional
grant of authority to charter cities, such as San Leandro, over the conduct of
its municipal elections.
[Cal. Const., art. XI, § 5, subd. (b) It shall
be competent in all city charters to provide, in addition to those provisions
allowable by this Constitution, and by the laws of the State for: (1) the constitution,
regulation, and government of the city police force (2) subgovernment in all or
part of a city (3) conduct of city elections and (4) plenary authority is hereby
granted, subject only to the restrictions of this article, to provide therein
or by amendment thereto, the manner in which, the method by which, the times at
which, and the terms for which the several municipal officers and employees whose
compensation is paid by the city shall be elected or appointed, and for their
removal, and for their compensation, and for the number of deputies, clerks and
other employees that each shall have, and for the compensation, method of appointment,
qualifications, tenure of office and removal of such deputies, clerks and other
employees.]
Even if the procedure for putting a local measure on the ballot
is not a "core" area of municipal concern under the California Constitution,
it lies squarely within four areas that have long been considered municipal affairs:
(1) the procedures for conducting municipal elections (Rees v. Layton (1970) 6
Cal.App.3d 815, 820; Mackey v. Thiel (1968) 262 Cal.App.2d 362, 365 [" 'election
procedures' in a chartered city are municipal affairs"]); (2) the procedures
for enacting municipal ordinances (Adler v. City Council (1960) 184 Cal.App.2d
763, 768, fn. 1 ["mode and manner of passing ordinances is a municipal affair"]);
(3) the levy of municipal taxes (City of San Bernardino Hotel/Motel Assn. v. City
of San Bernardino (1997) 59 Cal.App.4th 237, 242 ["levy of taxes for city
purposes is generally a municipal affair"]); and (4) the local exercise of
the initiative power (Lawling v. Faull (1964) 227 Cal.App.2d 23, 29 [charter city's
requirements for putting a referendum on the ballot prevailed over state requirements
because exercise of powers of initiative and referendum were municipal affairs].)
On
the Mayors Race… by Bruce Henderson, Date: December
17, 2004
What
follows is a long discussion that leads me once again to confirm a simple conclusion
that I reached several weeks ago, that being that Donna Frye will soon be San
Diego’s mayor.
Yesterday the County Registrar of Voters confirmed
officially that there were 5,547 votes cast for Donna Frye without bubbles that
were not included in the totals certified last week. Had these Frye votes been
counted, Donna Frye would have won the race for mayor by a margin of 3,439 votes.
Before explaining my continuing belief that the courts will soon order that
these 5,547 votes be added to Donna Frye’s total and that she will soon,
therefore, be sworn in as San Diego’s mayor, I would like to comment on questions
that have been raised regarding whether votes without bubbles demonstrate an actual
intent to vote for Frye.
Generally speaking in California, like elsewhere,
the law does not concern itself with the actual intent of voters. The use of the
term intent can, therefore, be misleading. The real issue is whether a ballot
as marked provides sufficient indicia of intent that, regardless of the actual
intent of the voter, the ballot will be read as registering a particular vote.
That’s the reason that in even in Florida it was the ballots that were closely
examined, not individual voters. And, if you think about it, in a system based
on a secret ballot, individual voters can’t be identified and questioned
regarding their intent.
So, the question to be decided isn’t actually
intent. Rather, the question posed is what is the fairest and most reasonable
reading of a physical ballot marked in a particular manner.
In this case,
there are 5,547 ballots where the voters made the effort to write in the name
of Donna Frye but did not fill in the bubble for any candidate for mayor. In these
circumstances, is it fair and reasonable to treat these 5,547 ballots as votes
for Frye? Does the sun rise in the east?
It follows that intent isn’t
an issue. The issue, instead is purely an issue of law, namely, whether or not
a vote for a write-in in a San Diego election for the city’s mayor is to
be counted where the ballot fails to conform to the requirement of Elections Code
section 15342 that to cast a valid vote for a write-in candidate the voter must
both write in the name on the line provided and, as well, properly mark the respective
bubble.
Given that Elections Code provision is unambiguous in creating two
requirements for a valid vote for a write-in candidate, doesn’t this state
law resolve the matter? Well, the Registrar of Voters has concluded that it does;
and, were all other things to be equal, the Registrar of Voters would be correct.
However,
in a number of key respects, all things are not equal. Most important, and so
far as I can determine the definitive factor is that the San Diego City Charter
(sections 8 and 9) and Municipal Code (section 27.0636), unlike state law, guarantee
to San Diego voters that their vote for a write-in candidate in an election for
any city office will be counted if the voter writes in the name of the write-in
candidate on the ballot on the line provided. Nothing more is required.
That
is, the City’s laws mandate that Frye’s 5,547 votes shall be counted
regardless of whether or not the bubble was filled in. In short, had this election
been conducted by the City Clerk (as is the special election in District 4), Donna
Frye would by now have been sworn in as San Diego’s mayor.
What happened
was that when the City consolidated its November election with the state general
election, the Elections Code provides that state procedures govern. So, which
law prevails, state law requiring a bubble and so favoring Mayor Murphy’s
position or the City’s law under which Donna Frye would be mayor?
The
answer to that question seems straightforward. Since charter cities were created
in California well over one hundred years ago, the rule has never varied: charter
city election laws and election procedures prevail over state law in all but the
most extraordinary circumstances.
A recent application of this rule that charter
city election laws procedures prevail was discussed in considerable detail in
the case of Trader Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37.
What follows are several paragraphs (slightly edited) from that opinion in which,
in my opinion, the court makes it clear why all the Frye votes are valid. If this
rule controls, as I think it does, Donna Frye will soon be sworn in as mayor of
our fair city.
*****
Trader Sports, Inc. v. City of San Leandro (2001)
93 Cal.App.4th 37:
We conclude that, as a charter city, Government Code section
53724 [part of Proposition 62, a statutory initiative adopted by the voters of
California in 1986] cannot override San Leandro's core constitutional authority
over the conduct of its local elections. (See Cal. Const., art. XI, § 5,
subd. (a).) Accordingly, we affirm the trial court's judgment in favor of San
Leandro because the two-thirds vote requirement of section 53724 is superseded
by San Leandro's charter and municipal code, which allows a tax measure to be
placed on the ballot by a simple majority vote of the City Council.
Our Constitution
is most explicit. The "conduct of city elections" is one of the few
specifically enumerated core areas of autonomy for home-rule cities. (Cal. Const.,
art. XI, § 5, subd. (b).) fn. 2 A statute purporting to define the number
of votes required for putting a local tax measure on the ballot [93 Cal.App.4th
47] contravenes this explicit constitutional grant of authority to charter cities,
such as San Leandro, over the conduct of its municipal elections.
[Cal. Const.,
art. XI, § 5, subd. (b) It shall be competent in all city charters to provide,
in addition to those provisions allowable by this Constitution, and by the laws
of the State for: (1) the constitution, regulation, and government of the city
police force (2) subgovernment in all or part of a city (3) conduct of city elections
and (4) plenary authority is hereby granted, subject only to the restrictions
of this article, to provide therein or by amendment thereto, the manner in which,
the method by which, the times at which, and the terms for which the several municipal
officers and employees whose compensation is paid by the city shall be elected
or appointed, and for their removal, and for their compensation, and for the number
of deputies, clerks and other employees that each shall have, and for the compensation,
method of appointment, qualifications, tenure of office and removal of such deputies,
clerks and other employees.]
Even if the procedure for putting a local measure
on the ballot is not a "core" area of municipal concern under the California
Constitution, it lies squarely within four areas that have long been considered
municipal affairs: (1) the procedures for conducting municipal elections (Rees
v. Layton (1970) 6 Cal.App.3d 815, 820; Mackey v. Thiel (1968) 262 Cal.App.2d
362, 365 [" 'election procedures' in a chartered city are municipal affairs"]);
(2) the procedures for enacting municipal ordinances (Adler v. City Council (1960)
184 Cal.App.2d 763, 768, fn. 1 ["mode and manner of passing ordinances is
a municipal affair"]); (3) the levy of municipal taxes (City of San Bernardino
Hotel/Motel Assn. v. City of San Bernardino (1997) 59 Cal.App.4th 237, 242 ["levy
of taxes for city purposes is generally a municipal affair"]); and (4) the
local exercise of the initiative power (Lawling v. Faull (1964) 227 Cal.App.2d
23, 29 [charter city's requirements for putting a referendum on the ballot prevailed
over state requirements because exercise of powers of initiative and referendum
were municipal affairs].)
—Bruce Henderson
What
cases have already been filed?
No challenges were filed prior to the
November 2 election. F