San Diego Coastal Alliance

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:

Frye would be mayor under new law
Sacramento 8/11/11, Union Tribune—Gov. Jerry Brown on Monday signed legislation that, if it had been law at the time, would have made Donna Frye mayor of San Diego in 2004.
The new law will require that all write-in votes count, even if voters leave the bubble next to a candidate’s name blank.
In 2004, the courts tossed out about 5,500 ballots cast for Frye, a councilwoman at the time and upstart write-in candidate challenging incumbent Mayor Dick Murphy.
Those voters had taken the time to write-in her name, but neglected to shade in the oval next to it. State law required that the bubble be filled, or the vote would be disqualified.
Assembly Bill 503 will change that, starting next year.
Contacted at home, Frye called the developments “terrific news.”
“Someone once said it’s not the voting that counts, it’s the counting of the votes,” she said. “That’s what was so unfortunate. So many people felt disenfranchised.”
Assemblyman Marty Block, a San Diego Democrat who carried the bill, said, “A bedrock principle of our democracy is ‘one person, one vote.’ Every person’s vote should be counted — the integrity of an election depends on it.”
His legislation still requires that voter intent be clear and unshaded write-ins are to be counted only if the outcome is in doubt.
The Frye-Murphy duel was settled only after the courts refused to validate her unshaded write-in votes. The dispute took months to decide, spanning across state and federal courts. A sticking point was that the city elections code did not require voters to fill-in the bubble next to their write-in choice. However, state law trumps municipal code.
The court ruling upheld Murphy’s lead of 2,108 votes out of 450,000 cast in November 2004.
“Essentially the will of the people of San Diego was ignored. It will now be set right if it ever happen again,” said Frye, who “at the moment” dismisses any political comeback although she is a rumored candidate for various offices.
In the Legislature, Block’s measure passed mostly along party-lines. However, Assemblyman Nathan Fletcher, R-San Diego, broke ranks and supported the bill. He is a candidate for San Diego mayor in 2012.
mike.gardner@uniontrib.com (916) 445-2934 Full article:
http://www.signonsandiego.com/news/2011/aug/08/brown-signs-voting-reform-bill/

Note from Coastal Alliance: The San Diego Register of Voters had Mayor Murphy's boxs on ballot filled in with solid black if they had Checks or Xs in them, claiming that it had to be done to run through the machine! We question the reasoning of this when the court allowed Donna's votes to be disqualifieds and NOT Murphy's fixed boxes!

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. Following the election, however, three lawsuits were filed.
1. McKinney v. City of San Diego
An appellate court opinion has been issued in McKinney v. Superior Court (City of San Diego) (2004) Dec. 7, 2004. No. G034762, holding that the plaintiff lacked standing and so the court lacked jurisdiction over the issues due to the fact that plaintiff sought post-election relief based on a statutory cause of action which was exclusively limited to pre-election challenges. The Court of Appeal made it clear that the issue of whether or not the Frye votes without filled-in bubbles was not a matter that could be decided at this time.
A petition for review was filed with the California Supreme Court on December 15, 2004 (S129979). It is not certain when the Supreme Court will act on that petition; however, given existing case law, I suspect it is highly unlikely that the decision of the Court of Appeal will be reviewed.
2. League of Women Voters v. City of San Diego
A decision was issued in this case on November 23, 2004. It also held that the plaintiff was without standing and that the court had no jurisdiction because the League sought a post-election remedy based on a statutory cause of action that had to have been filed prior to the election.
For reasons known only to the judge, he went on to hold, citing the case of Fair v. Hernandez, that the law does not permit write-in votes without filled-in bubbles to be counted. This opinion is in the law referred to as obiter dicta. That is, it was not necessary to reach the fundamental decision in the case and so has no value as precedent and so is not controlling. Worse, it was issued without having the matter fully briefed and without considering key legal issues that were not raised at the time, for example by my clients, because they are issues that only become relevant once the vote is certified and it becomes possible to file an Election Contest.
3. McDonald v. County of San Diego
On November 12 an action was filed in federal court. The trial court refused to issue a temporary restraining order, and that decision is currently on appeal. Although I attended oral argument in the case, I am still unable to understand the claim being made by the plaintiffs other than that it arises from federal voting right laws. I can’t predict the outcome other than to say that presently I am treating the case as irrelevant.

Riding the crest of a wave
Friday December 17, 2004 – UK Guardian
Can a straight talkin' surfer chick wipe out the complacency of San Diego's good old boys, by claiming victory in the mayoral elections, asks Dan Glaister
A storm is brewing in San Diego. No, not a storm, a wave. A big wave. A big wave is building in San Diego, threatening to crash down on the shore of the seventh largest city in the US. The big wave will wipe out the inbred culture of complacency that has corrupted the city and earned it the nickname Enron-on-Sea. And riding atop the wave is a politician unlike the others: she's a girl, she's blonde, she tells it straight, she is Surfer Chick. "Ha ha ha." Surfer Chick emits a throaty laugh in her office in San Diego's city hall. "Sometimes I wonder myself how it got to this. I didn't want to be an elected official. I wanted to be a ballerina." Now it may be too late for Surfer Chick - aka councilwoman Donna Frye - to return to the water. Six weeks after the election, and just over a week after the incumbent, Dick Murphy, was sworn in for a second term as mayor, the result seems more uncertain than ever. Frye entered the election just five weeks before the vote, too late for her name to appear on the printed ballot. To get around this, voters are allowed to write the name of a candidate into a blank space on the ballot. They also have to fill in a circle next to the name which enables the electronic scanner to register a vote. When the final tally of the votes was made, Frye came second, just 2,108 votes behind Murphy. This in itself represented some kind of revolution in San Diego politics. But this week things became even more scrappy. A study of the ballots sponsored by a lawyer supporting Frye and several news organisations found that 5,547 ballots with Frye's name written in had been disqualified because the voter had not darkened the circle. If those votes were counted, the mayor would have to stand down and Frye would be sworn in as the rightful winner, by 3,439 votes. But Murphy is refusing to budge.
Court cases loom as Frye decides whether to pursue her vanished votes. The lawyer who sponsored the recount, Fred Woocher, explained to the Los Angeles Times: "The issue is, do we live in a country where people are going to lose their right to vote when the intention is quite clear but the rules are not?" So compelling is this story of the political outsider who came from nowhere to challenge the established elites that the big news networks have already come calling. The story has even attracted Hollywood, always on the lookout for the next Erin Brockovich. "We've received a call about a movie or something like that," says Frye, sitting in her office. "A surf buddy of mine who also happens to be an attorney is looking into it. It's a good story. It might even pay my legal fees." Frye's looks have had profile writers striving to outdo each other: one paper rhapsodised that her blond hair cascaded while her blue eyes twinkled. In truth, Surfer Chick is a tall, distinguished-looking 52-year-old with, yes, long blond hair and, yes, blue eyes. She also has that rangy quality you find in people who are more accustomed to being outdoors than confined in office suites. Her sensible office gear doesn't look quite right either. Although the pink jacket, paisley skirt and ruched white shirt are probably what the plausible San Diego politician should wear, Frye gives the impression that she is inhabiting someone else's clothes. But beneath the image she shares attributes common in successful politicians: she knows what she wants and god forbid anyone who should stand in her way. "I don't do things just to get a message out," she says. "I do things to win." Frye got into politics 10 years ago when she started STOP - Surfers Tired of Pollution. Frye used to run a surf shop with her legendary surfer dude husband Skip Frye. "He was so smooth," she sighs, as she shows me a picture of Skip skateboarding long before it was fashionable. But then he got ill and she believed that the cause was pollution dumped into the sea by the city's storm drains. So Frye made her own investigations and started going to council meetings. That and her election to the council in 2001 brought home to Frye what she sees as the closed complacency of government. "There's no passion," she says, "there's no desire to understand what a public servant is supposed to be." This might all just be yet more political piffle, but with Frye there is a sense that she is the real thing, that she means it and has no inkling of how to duck the issues she raises. Frye is an unusual person. Dogged and well-grounded - she lives with her mother as well as her husband - she is also inspirational. Surely the good old boys will never let her win this election. "I already won," she says with a smile. "I don't mean I won as the mayor, and I don't mean to sound arrogant. We got more people participating in the mayoral election. People are hopeful, they're optimistic. No matter if I become the next mayor and represent the city, I won. I'm not going gently into that good night." There is one final irony in this tale of Surfer Chick versus the Good Old Boys. The boys got a measure passed on the election ballot authorising greater powers for the mayor. They never imagined that those powers might fall to anyone other than their chosen candidate.One of the few public voices to oppose the measure was councilwoman Donna Frye.

Mayoral challenge to resume in court, 3 skilled lawyers to debate legalities
By Greg Moran, UNION-TRIBUNE, January 24, 2005
The contentious San Diego mayor's race again moves back to the courts today in a hearing over two lawsuits seeking to overturn Mayor Dick Murphy's re-election.
The court fight will focus on issues now familiar to those who have followed the bitterly contested race: bubbles and write-in votes, and dictates of the city charter versus the provisions of the municipal code.
It also brings together a trio of lawyers well versed in city politics, city controversies and court fights over elections.
On Dec. 30, longtime activist, gadfly and former Councilman Bruce Henderson was the first to file a formal challenge to Murphy's victory.
On Jan. 6, Santa Monica lawyer Fred Woocher filed a challenge on behalf of three voters. Woocher is one of the state's leading election law attorneys, has represented candidates in more than a dozen contests and is connected to statewide Democratic figures and causes.
Trying to keep Murphy in office is Bob Ottilie, one of the city's main election law attorneys. He has a lengthy history with Henderson, opposing him in a race for City Council 18 years ago, collaborating with him and Mike Aguirre – then an activist, now the city attorney – to oppose the financing of an expansion of Qualcomm Stadium in 1996.
All three lawyers will converge for a high-stakes hearing in front of Orange County Superior Court Judge Michael Brenner. He was appointed to the case after the local Superior Court was recused to avoid any taint of bias because Murphy was a judge on the local bench before becoming mayor.
By now, the backdrop of the contest is well known to voters.
Murphy was certified the winner of the November election, defeating the write-in candidacy of Councilwoman Donna Frye by 2,108 votes, and sworn in for a second term Dec. 8. But a review of ballots after the counting turned up what will be the main piece of evidence at the hearing: 5,547 ballots on which voters wrote in Frye's name but didn't shade in a corresponding oval bubble.
County Registrar of Voters Sally McPherson, relying on state law, refused to count those votes. The law requires that bubbles be shaded in order for the vote to count.
What will happen today is unclear. Ottilie wants the trial to begin, but Henderson and Woocher said that several pre-trial issues have to be worked out. Woocher has asked for a postponement.
Ottilie said there is no reason for delay, arguing in court papers that the Legislature – when drafting the election contest laws – wanted challenges to move quickly.
Woocher countered that in election contests he has participated in there was at least one pre-trial hearing to iron out issues, set ground rules for the trial and assure that the case proceeds properly.
Ottilie said any requests for delays are intended to wear down his client financially. Murphy has opened a fund to pay the mounting bills related to the election lawsuits.
"They're arguing for a continuance claiming they can't litigate the case without additional time," he said. "I think their goal is to run (Murphy) out of resources so he can't adequately litigate the case. And that's not fair."
The skirmish over timing is just one indication of how hard-fought the cases probably will be. The stakes could not be higher, because if Brenner orders the disputed ballots counted, Frye would become the mayor.
Henderson's lawsuit says the city municipal code requires all write-in votes to be counted. He argues that because San Diego is a charter city, its laws trump the state election laws.
Woocher adopts the same line of attack in his filings, and adds that the voter intent to cast a ballot for Frye was clear and should be honored. He also contends that the equal-protection rights of voters were denied because ballots for Murphy and third-place finisher Supervisor Ron Roberts on which the bubbles were partially marked were nonetheless counted for them.
Aguirre released an opinion Friday agreeing that the county registrar was correct in not counting write-in votes for Frye in which the corresponding bubbles weren't filled in.
In a memorandum to Murphy and the City Council, he said state law, which requires voters to fill in the bubble, trumped a city ordinance that allows all write-in votes to be counted. The mayoral race and other local elections were consolidated with the state's Nov. 2 election.
"The state law write-in requirements are mandatory and prevail over the city's conflicting local ordinance" because the election "is a statewide concern," Aguirre said.
Nevertheless, Aguirre said, broader legal questions such as "whether the constitutional rights of voters were violated" by not counting all write-in votes must be resolved by the courts.
Aguirre said he had no intention of making his memo part of the court record but Ottilie has forwarded it to the court to support his case.
Election law battles are nothing new to Ottilie, who has carved out a specialty in the field over the past 18 years to supplement his civil law practice.
Most of the battles have been over language on candidate ballot statements or challenges to the qualifications of a candidate before the voting occurs, he said. He has served on the central committee of the county Republican Party, but said he has also worked with Democrats, such as Aguirre.
He also has served on the city's Civil Service and Parks and Recreation commissions.
Ottilie has defended Murphy in all five election lawsuits filed so far. He said he has known the mayor for 20 years, but said his representation does not mean he is the house counsel for the local GOP.
"This is someone who approached me to represent them, and I agreed," he said. "I would assume that is because I have 18 years of election-related cases here in San Diego, and I've probably done more election cases here than anyone else."
He and Henderson have crossed paths before. The two squared off in the 1987 race for the 6th District council seat. (The election that year also had Aguirre and Roberts running for seats in other districts.) Henderson beat Ottilie with 52 percent of the vote. A decade later, they linked up to oppose the financing plan for the stadium expansion.
In October they squared off again – this time over the candidacy of George Stevens in the 4th District. Stevens, a former councilman, was initially barred from running because of the city's term limits law, then put on the ballot by City Clerk Charles Abdelnour. Henderson sued, but a judge sided with Abdelnour and Stevens. Ottilie represented Stevens.
Ultimately, Stevens lost to Tony Young in the race to succeed late Councilman Charles Lewis.
No hard feelings, though. "Bob and I get along very well," said Henderson, whose well-publicized legal challenges against the stadium, the Petco Park and other issues have made him a lightning rod for criticism.
Henderson said he got into this battle after his clients, former Supervisor Lou Conde and Libertarian voter Steve Currie, contacted him. He said he has no partisan ax to grind.
"This is about good government," he said. "I think there are very fundamental issues at play here about how government works."
Those kinds of public policy issues have been a focus of Woocher's legal career. After earning a doctorate in cognitive psychology from Stanford and then a law degree, he went to work for the Center for Law in the Public Interest in Santa Monica.
He worked on a variety of cases there, including a handful on campaign reform and campaign financing. He then went to work for Democratic Attorney General John Van de Kamp before going into private practice.
There he has worked on behalf of the state in defending Proposition 103, the insurance reform measure opposed by the insurance industry. His clients have also included the Los Angeles Unified School District and Rep. Loretta Sanchez, D-Garden Grove, after her victory in 1996.
He was nominated by former President Clinton for a seat on the federal bench in 1999. He made it through a hearing in front of the Senate Judiciary Committee but never got a vote. His name was pulled just before Thanksgiving because, Woocher said he was later told, several conservative Republicans objected to his nomination.
He said the Frye case is part and parcel of his elections work. "I guess a lot of the work we've done on elections has been focused on guaranteeing the right to vote," he said.
He said the courts struggle between those who want wide-open voting access and others who want voting – on some level – to be regulated by "restrictive" rules.
"I've always been of the mind that the real problem we have is not getting enough people to vote," he said.

The initial hearing on the Frye/Murphy election contest will commence at 9:00 am Monday in the Presiding Department of the San Diego Superior Court, 220 W Broadway (old court house), 3rd floor.
Mr. Woocher has a motion on file to continue that I believe will be ruled on by the court at the hearing. However, the Registrar of Voters has been given a subpoena requesting that all ballots with Donna Frye's name written anywhere on the ballot be brought to court so that a count can be commenced. Additional testimony and submission of various documents may also occur.
On Friday the City attorney issued an opinion addressing some of the issues.
There is a fundamental problem with the opinion. As the case law that the opinion cites require, the opinion discusses a balancing test when state law conflicts with the law of a charter city, particularly where the conflict involves charter city procedures regarding the election of city officers.
The City Attorney opinion, as you can see if you read it, acknowledges that the interests of the state and the city must be weighed against each other as directed by the case law. Then the City Attorney opinion discusses factors that the City Attorney believes give weight to the state's interest in requiring a voter to write in the name of Donna Frye and, additionally, fill in a bubble. At that point in the analysis the City Attorney opinion stops. That is, the City Attorney makes no effort to examine the weight of the City Charter and City Municipal Code provisions declaring that elections for city officers shall be conducted under city rules and, in this connection, the importance of the right vested in city voters by the provision of city law stating that if a city voter writes in the name of a write-in candidate for a city office on the line provided in the ballot that the city voter's vote "shall be counted."
Naturally, if you set up a scale of justice and on one side place one set of considerations but on the other side you decline to place any of the competing arguments, the balance is going to tip in an obvious direction.
The same problem exists with the City Attorney's analysis of the laches issue. What is the most fundamental issue in the equitable defense of laches? Here is how one court put the rule: "It is not so much a question of the lapse of time as it is to determine whether prejudice has resulted. If the delay has caused no material change in status quo, ante, i.e., no detriment suffered by the party pleading the laches, his plea is in vain."
So, where is there any analysis of this question of prejudice in the City Attorney's opinion? The only prejudice that has been suffered has been by Frye voters since it is their candidate, who all know obtained the most votes by an unassailable margin, who is the person who hasn't been sworn in?
Moreover, how could any harm been demonstrated prior to the election? It would be impossible to prove at that point that any voter would not fill in the bubble, even though the problem could be predicted. Even then, who would have been able to prove that but for the bubble Frye was going to win?
The point here is that not one of these issues, each of which is critical to a successful assertion of laches, was even acknowledged in the City Attorney's opinion, let alone examined and discussed.
My criticism of the City Attorney opinion could go on and on, but I'll stop here. The opinion warms the heart of the Mayor and his attorney, so it does some good since the Mayor no doubt needs all the support he can muster. Beyond that, the opinion raises points that the voters who are contesting the election would be expected in any event to eventually address; but it does no more; and it certainly fails as an effort at objective analysis.
—Bruce Henderson
Aguirre's statement favorable to Murphy, Opinion rejects 5,547 disputed ballots
By Matthew T. Hall UNION-TRIBUNE, January 22, 2005
City Attorney Michael Aguirre waded into San Diego's murky mayoral contest yesterday by issuing an opinion that 5,547 disputed ballots should not overturn Dick Murphy's re-election in favor of Councilwoman Donna Frye.
Whether a judge will validate Aguirre's legal views is still to be decided. His advisory opinion said the county registrar of voters correctly applied state law by excluding all ballots from voters who marked Frye's name on a line for write-in candidates but did not fill in a corresponding bubble.
Frye said she was not fazed by the 15-page opinion, but Murphy's attorney, Bob Ottilie, wasted little time in faxing it to a judge who will preside Monday at a hearing over two remaining legal challenges to the Nov. 2 election.
Frye and Ottilie both contributed $500 to Aguirre's city attorney campaign last year, and Frye was one of only two council members to endorse him.
More than 2˜ months after the mayor's race ended, its results are still in doubt even though Murphy has survived three other lawsuits, was sworn in a month ago and delivered his State of the City address last week.
Ottilie, who said last month that Aguirre's ruling "would have no evidentiary value in a court proceeding," praised it yesterday as "the most extensive analysis of this issue that's ever been done by anyone in the state of California."
Two attorneys on the other side of the legal challenges to Murphy's re-election, Bruce Henderson and Fred Woocher, simply called the city attorney's opinion flawed.
"We've got three attorneys involved in the case. Two are on one side and one on the other," Woocher said. Aguirre's entrance, he said, "makes it two to two, so I guess the judge is going to have to decide."
Deputy City Attorney Lisa Foster wrote City Attorney Michael Aguirre's opinion that the county registrar of voters was correct in excluding 5,547 disputed ballots in the mayoral race.
The case will be heard by Orange County Superior Court Judge Michael Brenner. All of the San Diego Superior Court judges recused themselves because Murphy served on the bench with some of them. Aguirre's opinion, which was written by Deputy City Attorney Lisa Foster and researched by a team of lawyers, says state law applies to the city election because it was consolidated with the state's election.
The opinion also says county Registrar Sally McPherson acted appropriately under state law by filling in partially marked ovals on ballots for Frye's opponents while discarding ballots with unmarked ovals for her.
In his opinion, Aguirre said the lawsuits brought by Henderson and Woocher could be tossed out by a judge under the legal doctrine of "laches," which penalizes claims not made in a timely manner. Those lawsuits were filed after the election results were certified, but the write-in counting procedures were established and well-known before Election Day.
Aguirre added, however, that a failure to count write-in votes under state law "may violate voters' constitutional rights" and that a court will need to weigh the interests of voters disenfranchised by their unbubbled ballots against the interests of the state in modernizing the voting process.
After pledging more than a month ago to weigh in on the disputed ballots without anyone asking him to do so, Aguirre's opinion finally ended speculation over what he would say.
"This was a very tough decision for me because it really was a test of my own character. I hate the fact that it has an impact on a very close and dear friend of mine," he said, referring to Frye. "But that's just part of the responsibility."
He said he issued the opinion yesterday because to do it after Monday's court hearing "would have been a cop-out."
"The City Attorney's Office has an obligation to have a point of view on this matter, and I thought it was important that that be out before any decision might be made so that it might be of some help one way or another to the court," Aguirre said.
He added that he never intended to submit the brief to the court himself, though Ottilie now has.
Murphy defeated Frye by 2,108 votes in the registrar's official tally. A subsequent recount paid for by Woocher and several news organizations, including The San Diego Union-Tribune, turned up the 5,547 unbubbled ballots for Frye. If those were to be included, Frye would beat Murphy by 3,439 votes.
Henderson, a former councilman who has sued the city over contracts with its professional sports teams and other issues, filed a lawsuit Dec. 30 over the election. A week later, Woocher, a Santa Monica elections lawyer, filed another challenge. Both were filed on behalf of Frye voters.
Murphy was unavailable for comment yesterday on Aguirre's actions because he was in Washington, D.C., an aide said.
Frye shrugged off Aguirre's opinion shortly after it was announced.
"This is why it's ending up in court on Monday - a difference of opinion," she said.
Frye, who has not filed any of the five lawsuits brought against Murphy's re-election, said she would not urge her supporters to back off as a result of Aguirre's opinion.
"I'm not directing, I'm not orchestrating, I'm not telling people what to do one way or another as far as this litigation goes," she said. "What I will say is what I have said all along, that all the votes should be counted."
Ottilie, who has defended Murphy in all five election challenges, said he forwarded Aguirre's opinion to the court yesterday because it is significant.
He said his earlier prediction that the opinion would be worthless in court was made before Henderson and Woocher filed lawsuits claiming that the city's laws trump the state law that says the registrar should not count as votes those ballots on which the oval was not shaded in but Frye's name was written.
The opinion deserves consideration because Aguirre is "the city attorney for the city that's involved," Ottilie said. "This election is in our city, and the contention is being made that in our city the municipal code should apply."
Woocher and Henderson, however, said the opinion won't affect their challenges.
"It's a flawed analysis because the state constitution explicitly says and has been interpreted to say that with respect to municipal elections, city law prevails over any conflicting state law," Woocher said.
Henderson said, "The analysis is wrong."
The city attorney essentially balanced the interests of the state against the interests of the voters of San Diego and favored the state, Henderson said.
"The truth is that's for the judge to do," he said.:
The big question, Did Donna Frye receive the most legal votes or Dick Murphy?
Bruce Henderson, January 6
I've been told by a number of people, with the exclusion of Fred Woocher, that Woocher will file an Election Contest today on behalf of his clients.
A hearing date for all election contests that are filed should be set next week for a likely date toward the end of this month.
Set forth below is an editorial published today in The San Diego Union-Tribune. I like vigorous debate and believe strongly that human progress requires a dialectical process that healthy debate ensures. Sadly, it has been my experience over the years that UT editorials too often fail in this regard because the editors grossly misrepresent the positions of their "opponents" - opponents who, by the way, are seldom permitted to respond other than in some highly abbreviated letter to the editor.
The United States Congress will soon be debating the validity of the election of George Bush due to the fact that Senator Barbara Boxer signed on to a challenge initiated by a number of Democrats in the House.
The authority of elected bodies to review and determine the legitimacy of the election of a member has long existed at every level of government, including authority granted the City Council and Mayor by the City Charter -- as Fred Woocher pointed out in his letter.
At the same time, as Fred Woocher also pointed out and as even the editors seem to understand, the courts have concurrent jurisdiction. In California that jurisdiction is set forth in the election contest provisions of the California Elections code.
Where the editors go wrong in their effort to win their argument by ridicule rather than honest debate is the assertion that Woocher is asking the City Council to choose "whomever it likes as mayor." Obviously, Woocher is asking the Council to make a decision on a clearly objective basis from among qualified candidates who ran, that basis simply being the same basis on which the winner was under the law to be certified, namely, that San Diego's Mayor is the candidate who received the most legal votes.
Did Donna Frye receive the most legal votes or Dick Murphy? That's a question that has been raised in court, and Mr. Woocher, by pointing to City Charter section 14, has asserted that the City Council and the Mayor has concurrent jurisdiction to also address it.
The most relevant response to Mr. Woocher's letter is that this section 14 debate and certification of the vote occurred on December 8 when the Mayor and Council accepted the vote certified by the Registrar of Voters. The problem is, at least from my clients' perspective, that that "debate" occurred prior to the Mayor and City Council learning that Donna Frye had actually received 5,547 votes in which her name had been written in on the ballot in full compliance with the San Diego Charter and Municipal Code which guarantees San Diego voters that if they comply with the City rule that their votes for a write-in "shall be counted."
That new information is the reason that, whatever legal arguments Mr. Woocher may advance on the part of his clients, that Mr. Woocher's request that the Mayor and City Council revisit this issue is perfectly reasonable under the terms of our San Diego Charter.

2 challenges call for Frye to be named S.D. mayor
By Philip J. LaVelle UNION-TRIBUNE, December 31, 2004
Two formal challenges to San Diego's mayoral race were filed yesterday, one asking the City Council to declare write-in candidate Donna Frye the winner, the other asking the courts to do the same.
lawyer Fred Woocher filed a letter with the City Council urging its members to exercise rights, under the city charter, that allow them to be "the judge" of the mayoral election.
"We recognize that the action we are asking the City Council to take is extraordinary," Woocher told a news conference outside City Hall, "but these are extraordinary circumstances."
Earlier yesterday, Bruce Henderson, a lawyer and former council member, filed suit in Superior Court against Mayor Dick Murphy, contending that because San Diego is a charter city, its election rules prevail over rules adopted by the state Legislature.
More people cast ballots for Frye than for Murphy in the Nov. 2 election. But county Registrar of Voters Sally McPherson refused to count ballots that have Frye's name written on them but do not have a corresponding oval bubble shaded in, saying the latter is required by state law.
Henderson says that under language in the city's municipal code, the disputed ballots should be counted.
Murphy attorney Bob Ottilie said Woocher's move is a sign that the Frye supporters realize they have little chance in court, while Woocher said his odds are "wonderful." Ottilie said the Henderson lawsuit is a retread of earlier, unsuccessful claims made by the San Diego chapter of the League of Women Voters.
Developments
Lawsuit filed: Attorney Bruce Henderson filed a lawsuit in Superior Court contending that under the city election code, 5,547 disputed write-in ballots for Councilwoman Donna Frye should be counted, which would make her mayor.
Meeting sought: Attorney Fred Woocher, on behalf of two Frye supporters, called on Mayor Dick Murphy and the City Council to hold a special meeting next week to declare Frye the winner over Murphy, and said a lawsuit could follow if that doesn't happen.
Response: Murphy's attorney, Bob Ottilie, said the only way to contest the election is in court, and that Henderson's lawsuit has no merit because state law takes precedence when local and state elections are consolidated. Woocher's action "is good news for the people of San Diego," Ottilie said at a news conference yesterday, referring to Woocher's action, "because it shows that the end is in sight."
He disputed Woocher's contention that the council has the power to change the election outcome. Ottilie said the council already exercised its rights in the election when it voted to certify Murphy the winner.
Frye, a member of the City Council, entered the mayor's race five weeks before the Nov. 2 election and was given little chance by the city's political establishment.
In the official tally, Republican Murphy beat Democrat Frye by a mere 2,108 votes. County Supervisor Ron Roberts, a Republican, placed third.
But an unofficial recount this month showed there were 5,547 ballots cast for Frye but without the bubble filled in. Had those ballots been counted, Frye would have defeated Murphy by 3,439 votes.
Murphy would not comment yesterday, and his office referred calls on the latest developments to Ottilie.
Frye said in an interview that she did not collaborate on either of yesterday's actions and has no plans to file her own election challenge in court. The deadline is Jan. 7, 30 days after the council certified the election.
"I still believe, and have always believed, that all the votes should be counted," said Frye, a clean-water activist and surfboard shop owner and the wife of surfing legend Skip Frye.
"If voters actually took the time to write in someone's name, it's real clear what they intended to do," she said.
The two Frye supporters Woocher is representing, Gail Rojas and Brian Lawrence, asked for a count this month of the so-called unbubbled ballots in a failed bid to persuade McPherson to declare Frye the winner.
Several news organizations, including The San Diego Union-Tribune, also asked for a tally of the previously uncounted Frye ballots, solely to determine how many there were.
Yesterday, Woocher said he hopes the council takes quick action on his request.
"We think we can get it done before the (mayor's) State of the City address" on Jan. 10, he said, "so we can have the real mayor give the address."
In his letter to Murphy and the council, Woocher said that "only an egregious misapplication and misinterpretation of a provision of state law" by McPherson has "prevented Donna Frye from assuming her rightful position as Mayor of this City."
The letter asks that the council meet in special session next week to begin election-contest proceedings.
It also said the municipal code calls for counting any write-in ballot, regardless of whether the bubble is shaded in.
Ottilie said the city agreed, by consolidating its ballot with the statewide election ballot Nov. 2, to abide by the rules of the state's election code.
Noting the extraordinary nature of the request, Woocher said in the letter: "The City of San Diego is mired in a financial and legal crisis of staggering and still-unknown dimensions. The incumbent Mayor ran for re-election in November, and two-thirds of the city's voters rejected his candidacy."
The letter also called Frye's tally "the largest write-in vote total ever received by a candidate in the history of the State of California, if not the United States."
Frye received 155,851 votes in the official tally.
Woocher, in response to a question, said he might sue in state or federal court if the council – as widely expected – rejects his request.
"I think our chances (in court) are wonderful, but I'd rather not have to go through that long proceeding," he said.
Councilman Ralph Inzunza, the only other council member besides Frye who could be reached yesterday, said he wants advice from City Attorney Michael Aguirre before commenting on the possibility of a special meeting.
"I don't know if what Mr. Woocher is asking for is even possible," Inzunza said. "The city attorney can make an opinion on just about everything. I see no reason why he can't opine on this. And I think he will."
Aguirre declined to comment last night, saying he had not carefully read Woocher's letter or Henderson's lawsuit or researched their contents.
The City Attorney's Office, Aguirre said, is continuing research for its own opinion, which may come next week, on whether the unbubbled Frye votes should count.
Aguirre said he didn't know whether he would issue an opinion on issues raised in Woocher's letter.
Henderson's lawsuit was filed at Superior Court on behalf of Libertarian Steven Currie and Republican Lou Conde, a former member of the county Board of Supervisors.
The suit focuses on the municipal code language regarding the counting of write-in ballots.
Henderson said his clients will not say whether they shaded in the bubble when they voted for Frye. "We don't want it to be relevant," he said.

Attorney: City Council Should Declare Frye Mayor, Second Group Files Lawsuit
NBCSandiego.com POSTED: 6:46 pm PST Dec. 30, 2004, UPDATED: 7:41 pm PST Dec. 30, 2004
SAN DIEGO -- In an unprecedented move, an attorney for two supporters of City Councilmember Donna Frye is asking the City Council to declare Frye mayor.
In a letter addressed to Mayor Dick Murphy and other City Council members, Attorney Fred Woocher said the current election results are inaccurate because write-in votes without the bubble filled in should have been counted. Furthermore, he said, the city charter gives the council authority to contest the election results.
"We request the City Council immediately convene a special session during the week of Jan, 3, 2005, to commence the election contest proceedings so that the contest may be heard and resolved expeditiously and order be restored to the city of San Diego as soon as possible," Woocher said.
"It was only due to a misapplication and misinterpretation of law by the San Diego County Registrar of Voters that Donna Frye was not certified and declared the winner of the election," Woocher wrote in the letter.
Murphy's attorney, Bob Ottelie, disagreed with Woocher's assessment, saying state law trumps the city charter when it comes to election law. He called the request as a small victory for Murphy.
"I think the most significant thing here is that they chose not to go to court at this time -- the message that sends to me is that they don't have confidence of their position in a court of law," Ottelie said.
While Woocher may not be taking the case to court right now, however, another group is, NBC 7/39 reported. Attorney Bruce Henderson filed the suit Thursday on behalf of Steven Currie and Lou Conde. Henderson is arguing the city's election laws make no reference to filling in the bubble and bubble-less write-in ballots should therefore be counted.
Frye lost the mayoral election by a little more than 2,000 votes. A review of the disputed ballots, however, showed that Frye would have beaten Murphy by more than 3,000 votes had non-bubbled write-in ballots been counted.

Election Contest filed Dec. 30, 2004 by Steven Currie and Lou Conde, respectively, a Libertarian and a Republican.
Currie and Conde assert that all voters who filled in the name of Donna Frye on the line provided on the ballot complied with the City's Municipal Code which goes on to provide that when voters comply with that rule that their votes "shall" be counted.San Diego is a Charter City. As such San Diego has plenary authority to establish rules regarding the election of its officials. Under the California Constitution charter city election rules prevail over rules adopted by the state legislature.

Don Bauder: Frye's Big Chores
By Don Bauder , San Diego Reader , December 23, 2004
Set cynicism aside. The ballot-bubble hubbub may yet bring a happy ending: the swearing-in of a legitimately elected mayor, Donna Frye. This column offers an agenda for Frye's first term. She was not consulted, of course, for it's premature for her to comment, particularly since the legal picture is still cloudy. However, she has already embraced many of the initiatives suggested here.
Obvious question: Is it possible that our partisan, conservative courts will give Frye the nod? Yes, and here's how: Despite all you read, it is not clear under state law that a bubble must be marked for a write-in to count. It's clear in one section, but not in others. However, the San Diego charter and municipal code both state that write-ins will be counted, bubbles be damned.

Former councilmember Bruce Henderson points out that in California election disputes over the past century, when laws conflict, "The court goes with the law that maximizes the vote." But the court may not even get to that issue, because the California constitution specifically states that election laws for cities such as San Diego always prevail over state law, says Henderson. As others point out, the bubble is only a convenience for vote counters, so a court throwing out ballots with unmarked bubbles would be putting the comfort of registrar employees ahead of the will of the people.

Post-election, public opinion is moving against the current administration. Self-proclaimed mayor Dick Murphy is earning the nickname "Mayor Empty Bubble" with his absurd utterances, such as that ballots with undarkened bubbles are "illegal," and, "I really don't know the voter's intent who wrote in Donna's name and didn't fill in the bubble." Puh-leeze.

Mayor Frye must move quickly. Government's job is "to take care of public health and welfare -- not corporate and private welfare," says former councilmember Abbe Wolfsheimer-Stutz. "We have to solve the water- and sewage-treatment problems, and to do that we have to get our back audits completed [2003 and 2004] and restore our credit rating." And then go back to the bond market for the money to fix neglected infrastructure.

In the interim, to keep the city running, "We must get renewal of the short-term credit from the Bank of America," or some other financial institution, says Mel Shapiro, civic activist.

The critical priorities, in order, are "financial recovery, financial recovery, financial recovery," says Carl DeMaio, president of the Performance Institute, a private think tank specializing in government efficiency. "It's mea culpa time. We can't deny the problem," as councilmembers Jim Madaffer and Scott Peters did on KPBS radio last week, arguing that political scaremongering created a perception of a problem that doesn't exist.
Accounting firms will not give anything but a hedged, qualified audit until the federal government has completed its investigations of the city putting misinformation in bond prospectuses. Newly elected city attorney Mike Aguirre has launched his own investigation and pledged cooperation with federal probers. Aguirre should be named the "sole elected official" to get the audits completed, spearhead the cooperation with federal investigators, and probe possible culpability of city employees, says DeMaio.
"The council should have a separate financial recovery docket, and it should focus on that docket at every single meeting," says DeMaio. "None of this can be done in closed session. It must be open to the public." Establishing openness, long a Frye priority, is essential, say all who were interviewed. Tuesday's unprecedented open council meeting on the city's ailing finances was a good first step, indicating Frye's influence is already taking hold.
The council should examine numerous cost-saving items, such as reducing employment and bidding out certain services, DeMaio says. A balanced-budget initiative should be put before voters. "We would strongly suggest some sort of balanced-budget accountability trigger, so if the budget gets out of balance, rebalancing moves will be made every quarter," DeMaio adds.
"The city auditor should be independent, not beholden to politicians, not protecting the politicians," says Norma Damashek, vice president of the League of Women Voters. DeMaio thinks a city comptroller, in charge of all auditing, should be elected, not appointed.
The near-$2 billion pension and health-care deficits are front and center. Last week's slimy move to eliminate whistle-blower Diann Shipione from the city pension board makes several steps essential. Anybody involved -- whether a staff member, board member, or city government employee -- should be disciplined or fired if they made material false representations. Last week, Aguirre, alarmed at what the board might be trying to do in closed session and wanting to preserve documents for his investigation, took over the retirement system's legal affairs and demanded that files be placed under lock and key. The pension board fought back, claiming Aguirre did not have the authority. It will require a Mayor Frye to help Aguirre smash San Diego's culture of secrecy.
The next step is meaningful pension reform. Among many things, Shipione says that the Deferred Retirement Option Plan (which permits employees to double their pay in their last five years and walk off with both a monthly retirement check as well as a lump sum) must be dropped because it's not being funded. Also, some members of the retirement board are voting on benefits they receive. "People who stand to gain should not be on the board," she says. And the accounting system is lax; it must go conservative.
"To get the numbers they want, the board now tells the actuary how to adjust his assumptions," says Shipione. The actuary should produce independent numbers. Back in the bull market, the board was skimming money from winning investments and using it to pay health-care benefits. That's lunacy, says Shipione, and the Vinson & Elkins report, funded by the city, agrees.
As I have said many times, city employees' pay is well above the earnings of average San Diegans. In addition, the employees get the generous benefits and early retirements. This must change.
There are many other things that should get high priority. "We need to set up some form of a charter-review commission, so that the public can finally be consulted about the strong-mayor system," says Damashek. "What was passed in November said that within five years there will be another vote. We need a charter-review commission so that the transition is done right and in the public interest. This was pushed through so fast that nobody knows what it entails, what it will cost. The people pushing it, in their haste, just didn't bother with details."

Then there are corporate-welfare scams. With a near-bankrupt city selling any encumbering land to survive financially, the Chargers, backed by the establishment, want the city to give $1 billion worth of land with development rights to the team and pay for infrastructure for a new stadium and surrounding new development. "Frye must be proactive with the so-called Chargers proposal," says Henderson. "She should demand that the real cost of the proposal be identified. Before there is any more activity, there should be an environmental impact report -- not a week before next year's scheduled election or a year after the election, as there was with the Padres. We must also examine the Padres project, see what misrepresentations were made, what the real cost has been compared with the false promises that it would pay for itself."
At the same time, the city should study how much money goes into subsidizing downtown condominiums and other structures such as office buildings. Actually, "We should reexamine downtown redevelopment," says Henderson. "Have we done enough to prime the pump? It is time to direct downtown property-tax revenues into day-to-day operating expenses, rather than to subsidies for what are now highly profitable business ventures."
Taxpayers must know how much their leaders are spending on corporate welfare -- the classic redistribution of income from the poor to the superrich, who finance the pols. "The city needs to identify all the for-profit interests receiving subsidies from the city budget," says Henderson. "What are the subsidies received by the hotel-motel industry? Not just the direct subsidies, but the indirect ones that come through so-called nonprofit groups that are just shills for corporate welfare."
Murphy's beloved downtown library? "We should have a grand edifice sometime, but we can't afford it now," says Wolfsheimer-Stutz. She could envision a large repository of professional books downtown, "But we must put the emphasis on the outlying branches."
Shapiro notes that the city keeps stressing affordable housing, "But at the same time, the planning commission approves every condo conversion that comes before them. There is less apartment supply, and rents go up."
Of course, Frye will need the council's approval for much of this agenda. Almost all members are beholden to the corporate-welfare overlords who finance their campaigns. But occasionally, career politicians pondering their future plans are forced to put public opinion above moolah.

Ballot Review Favors Frye
* Counting San Diego's disputed votes shows write-in candidate would have beaten the incumbent mayor, already sworn in.
By Tony Perry, Times Staff Writer, Dec. 15, 2004
SAN DIEGO — The hotly disputed race for mayor here took a sharp turn Tuesday as a review of disputed ballots showed that Councilwoman Donna Frye would have beaten incumbent Mayor Dick Murphy if all votes had been counted.
Tuesday's review looked at ballots that had not been counted in the official tally. It was conducted at the request of The Times, four other news organizations and two pro-Frye voters.
The results threw the politics of the state's second-largest city into confusion more than a month after the Nov. 2 election. The disputed election comes at a high-stakes time for San Diego. Whoever is mayor will face a deep financial crisis and a federal investigation of city officials. Both stem from the city's failure to properly fund its employee pension plans.
As the candidates and their lawyers and advisors plotted their next moves, Republican and Democratic political consultants and activists said the ballot review had severely weakened Murphy's position.
Just a week ago, Murphy, a Republican, was sworn in after being certified as the winner with a margin of 2,108 votes over Frye, a Democrat who was a write-in candidate.
The ballot review Tuesday uncovered at least 4,854 additional, uncounted votes for Frye. That total will probably grow today as thousands more absentee ballots are surveyed. In all, 455,694 votes were cast.
"Dick Murphy is now the phony mayor," said Scott Barnett, former executive director of the San Diego County Taxpayers Assn. and a Republican. "He already had only about a third of the vote; now there's an incredible cloud over him."
At issue in the balloting are thousands of "empty ovals" — ballots in which a voter wrote in Frye's name but failed to fill in the small oval next to the write-in line. Election officials had declined to count those ballots, and a Superior Court judge last month upheld their decision, saying that state election law required that ovals be filled in for a write-in to count.
The impact of the ballot review could be seen Tuesday afternoon on the faces of the two candidates as they answered questions from reporters — Murphy appearing somewhat stressed while Frye seemed buoyant and upbeat.
"I have no objection to the examination of the ballots, but the bottom line is: Illegal votes don't count," said Murphy at a news conference at his City Hall office.
"To me it's clear. I'm the legitimate mayor," he added. "The state Legislature passed the law that says you must fill in the oval …. That's the way it works in America. We are a society that follows the rule of law."
Election law experts, however, say the law is far less clear. The question of whether to count the empty-oval ballots pits two principles of election law against each other: honoring the intent of voters versus requiring compliance with rules.
"The question is how much knowledge of the process can you require on the part of voters?" said Rick Hasen, an election law expert at Loyola Law School in Los Angeles. "Are you going to disenfranchise people who didn't follow the rules?"
Frye, at her news conference at the Registrar of Voters office in a warehouse district north of downtown, ridiculed Murphy's stance.
"Voting is not a test. It is an expression of the will of the voters," she said. "It is unfortunate Mr. Murphy continues to insult the intelligence and integrity of the people of this great city.
"The public has spoken," she added. "The question is whether the public will be heard."
Gary Sirota, a lawyer for Frye, said no decision had been made on challenging the election.
Procedurally, Frye would formally request a recertification of the vote with the previously uncounted ballots added into the total. If the registrar turned down her request, she could then go to court.
But activists from both parties agreed that regardless of the legal niceties, Murphy's position would be politically costly.
"It's absurd not to count these votes. It's hard enough to get people to vote without ignoring their votes because of a technicality," said Barnett.
And while Murphy might ultimately win in court, the activists said, the dispute would diminish his authority.
"Even if the court continues to block these votes from counting, he's got a very hollow victory," said Bob Glaser, a Democratic political consultant. "It's got to give Donna Frye and the other council members the power to take some control away from the mayor."
"It further diminishes his authority and leadership on the council. He's clearly the person who did not get the most votes," said Cynthia Vicknair, a Republican consultant.
Frye, owner of a surf shop, received strong support from environmental groups and unions. She entered the race as a write-in candidate about a month before the election, joining a runoff that pitted Murphy against a second Republican, county Supervisor Ron Roberts.
In the days immediately after the election, as Frye led in the vote count, her maverick image and the prospect of a write-in victory drew national attention to the race. Then, as the vote count drew to a close, Murphy pulled ahead. Frye's backers insisted that thousands of empty-oval write-in ballots were being ignored, but until Tuesday's review by the news organizations, no actual figures existed.
Now that the number of empty ovals is known, the legal battle is expected to restart. Frye is not bound by the previous ruling by Tulare County Superior Court Judge Eric Helgesen, which came in a suit brought by the League of Women Voters. She or her supporters have until Jan. 7 to challenge the election results.
The new tally came after requests by The Times, the San Diego Union-Tribune, KPBS radio and television, KGTV television, and KNSD television to examine the ballots, which under state law must be open to public scrutiny. A similar request was filed by Fredric Woocher on behalf of the two Frye backers.
The review's cost to the county, about $2,000 so far, was split evenly between Woocher and the five news organizations.
Hal Simon, the Frye campaign's top poll watcher, who had correctly predicted that more than 4,000 empty-oval votes would be found among ballots cast at precincts on election day, said he believed an additional 1,500 to 1,800 Frye votes would be found among the absentee ballots that had yet to be counted.
Times researchers Rodney Bosch and Maria Lopez contributed to this report.
It has been confirmed that Donna Frye has thousands of votes more Murphy
Now that it has been confirmed that Donna Frye has, at a minimum, almost 2000 more votes than Dick Murphy, I estimate is that the odds are better than 90% that Donna Frye will be sworn is as San Diego's mayor by the end of January at the latest.
Although it is correct that the California Elections Code states that votes sans bubble are not to be counted, the San Diego Charter/Municipal Code (section 27.0636) provides as follows regarding write-in votes: "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, ...." [emphasis added]
Aside from other legal issues, the question in the court case that will soon be filed (if it hasn't already been filed this afternoon) is whether the substantive right of San Diego voters to have their vote counted if they fill in the name on the line provided trumps the procedural convenience of officials counting votes whose only argument is that it is more convenient if they can limit their count to votes with bubbles.
Naturally, in the usual election write-in candidates receive so few votes that the procedural rule makes absolute sense. Nevertheless, the requirement of a bubble contradicts the right of voters established by the City Charter to have their write-in vote counted sans bubble.
Obviously, had the election been conducted by the City Clerk (as is the case for the District 4 special election), all votes for Frye would all have been counted and Donna Frye would already have been sworn in as mayor.
So, which rule will the courts choose to enforce? Can the City Council merely by voting to consolidate a city election with the state election waive or contract away voter rights created by the City Charter?
My reading of the law leads me to conclude that no such waiver of voter rights can occur and that, given the conflict between the City Charter and the Elections Code, the courts are bound to resolve the conflict by enforcing that rule which results in the most votes being counted, i.e., the City Charter.
Finally, in the prior cases the courts never got to these issues nor did the courts otherwise rule on the question of whether Donna Frye was a qualified write-in. That answer is obvious; moreover, I have concluded from my review of the law that the issue of whether Donna Frye was properly permitted to run as a write-in was an issue that had to have been raised prior to the election utilizing pre-election remedies.
Dick Murphy made quite a bet last October when he welcomed Donna into the race. The bet was that Donna would take just enough votes away from Roberts that Murphy would win. It was a bet he had to make and a bet he almost won. But, in these situations close doesn't get you the cigar.
— Bruce Henderson

Attorney confident of recount possibilities
By SCOTT LEWIS, The Daily Transcript, December 10, 2004
One of several attorneys still engaged in the struggle to sort out what may be the most complicated mayoral election in San Diego history said he expects a recount to begin Tuesday.
Fred Woocher, a Santa Monica-based attorney representing two supporters of Councilwoman Donna Frye's write-in candidacy, also said Friday that now may be a more appropriate time to compel county officials to count votes previously discarded because of a technicality. He filed a formal request for a recount with the County Registrar of Voters Sally McPherson.
Woocher said he has often witnessed officials count previously discarded votes during recounts -- as long as the intent of the voter is clear.
"There are different standards that apply in the context of the recount as opposed to the initial canvassing elections officials perform," he said. "Historically, where the intent of a voter is clear, the vote has been counted despite the fact that some of the technical requirements in the code have not been met."
Attorneys for Frye and her supporters contend that potentially thousands of votes for her were discarded because voters neglected to fill in an oval next to a line above which they had written her name on the ballot.
Woocher said that even votes in which a resident circled the name of their preferred candidate should count.
"I would be the first to argue that had someone circled (Mayor) Dick Murphy's name on the ballot, it should count toward his vote total," Woocher said.
Woocher's action came amid of flurry of others led by local media organizations. Several demanded a recount of the election on Frye's behalf.
Dean Nelson, a professor of journalism at Point Loma Nazarene University who is active in the local Society of Professional Journalism, said local news organizations are performing their duties as "watchdogs" by demanding the recounts.
"I think it's appropriate. It has historically been the role of the news media to push for openness and accountability," Nelson said.
Previously, lawyers representing the League of Women Voters had tried to force county officials to count all of Frye's "undervotes" -- write-in votes in which the oval had not been filled in. The judge ruled against the request.
Attorney Bob Ottilie, who represented Mayor Murphy, argued that two actions must take place for a candidate to receive a vote: one, the candidate must get on the ballot. Murphy and County Supervisor Ron Roberts did so after winning the primary election. Frye did so by having supporters physically write her name in.
The second step, Ottilie argued, was to have supporters fill in the bubble. If they neglected to do that, it wasn't a vote, he argued.
Woocher disagreed.
"There are different standards for determining whether a vote counts that have been adopted by the California Secretary of State," he said.

Dear Friends,
Greetings. The most recent developments in the mayor's race include the vote by the the San Diego City Council on December 8, 2004 to certify the mayoral election results and the subsequent requests (also on December 8) for a recount (one by the Los Angeles Times, KPBS and KGTV Channel 10's and another by attorney Fred Woocher). On December 9, 2004 The San Diego Union-Tribune also filed a request for a recount. I am heartened by the requests for an accounting of the election results, and also by the fact that others believe as I do - that the public has a right to know.
I am sending along some of my comments from the December 8, City Council meeting made prior to my vote on the certification of the election.
Thanks to all of you for keeping the faith,
Donna

Groups seeking recount to meet with Registrar of Voters
SIGNONSANDIEGO NEWS SERVICES, 3:08 p.m. December 9, 2004
SAN DIEGO – Two groups asking for a recount in San Diego's mayoral election will meet Monday morning with the county Registrar of Voters to discuss how to proceed, an attorney said Thursday.
Fred Woocher, who represents two people who voted for write-in candidate Donna Frye, said the meeting will help establish "common objectives" between the groups so votes can be counted as "quickly and efficiently as possible."
Cost estimates for the recount range from $100,000 to $150,000.
"Cost is really a function of how much time it takes," Woocher said.
The recount could begin Tuesday or Wednesday, Woocher said.
Woocher sent a letter to the county yesterday requesting a recount, after Mayor Dick Murphy was sworn in for a second term.
Murphy declared victory after it was determined he had 2,108 more votes than Frye. County Supervisor Ron Roberts finished a distant third.
Two television stations, KGTV and KPBS, and the San Diego bureau of the Los Angeles Times, filed a separate request for a recount on behalf of voter Ann Shanahan-Walsh.
A one-page request from Shanahan-Walsh asks for a count of ballots in which the oval next to Frye's written-in name was left blank.
The news organizations have offered to pay for that recount, Shanahan-Walsh said.
Murphy said he would not oppose a recount as long as all the procedures are followed and all votes are counted.
"My position is I have no objection to a full legal recount," he said. "I just want to make sure the recount follows the rules, follows the law."
State law requires the oval or "bubble" next to a write-in candidate's name to be filled in for it to be counted.
Lawsuits asking the registrar to stop certification of the election until the "non-bubble" ballots are counted have failed.
Frye says votes should be counted based on voter intent.
Woocher said the request he filed on behalf of Gail Rojas and Brian Lawrence asks for a recount of the disputed ballots, and recount procedures from the registrar's office.
The county has seven days to initiate a recount after it is requested, officials said.
Murphy said drawn out challenges to the mayor's race would lead to "protracted uncertainty" in the city.
He also said the failure to resolve the election could make it more difficult for him to work with Frye on city business.
"I was optimistic that Donna and I could work together for the next four years, and I am still hopeful of that. But that assumed we were going to put this election behind us," he said.
"Once we get it behind us, I am still hopeful we will be able to work on city business together."
My comments from the City Council Meeting, December 8, 2004"
The motion before us today is to accept the Registrar of Voters' certification of the results of the November 2nd election results for Mayor of the City of San Diego. As many might have guessed, I've had to think long and hard about an appropriate response for this moment. Before I give you my feelings on this motion, it would be useful to recap some of the events that have brought us to this point. On September 30, I responded to the requests of so many of you out there and announced my intention to run as a write-in candidate for mayor. My reasons for doing so are well known, and we do not need to go over them again. Suffice it to say, I believed the voters were, and are, speaking out for a change in the way we conduct the public's business.
On October 4, I turned in 3,800 voter signatures to qualify as a write-in candidate. I know we only needed 200 signatures to qualify, but the response in the community was so overwhelmingly positive to my entrance into the race, it seemed everyone wanted to be part of this historic campaign.
On October 6, the City Clerk did his job and verified my nomination petition, with no mention of a legal challenge by either of my opponents or members the public.
Then, beginning October 15, the attacks on my candidacy began with a newspaper article alleging an inconsistency between the City Charter and the Municipal Code.
As this alleged conflict came to the public's attention, our campaign was also made aware of other inconsistencies. First, absentee voters were calling and e-mailing us to say they were confused by instructions given by the Registrar of Voters. Indeed, one of the pamphlets sent to voters indicated, just as does our municipal code, that all a person needed to do to have his or her vote counted was to write my name on the appropriate line.
On October 27, my campaign notified the Registrar that her instructions were ambiguous, and that she should take the necessary steps to ensure that every vote be counted. Whether a voter misspelled my name, or failed to fill in the bubble, I have consistently held that, above all, San Diego voters should not be denied their right to vote for the candidate of their choice.
So, after some very spirited debates with my opponents, and lots of hard work from so many incredibly gracious volunteers, we looked forward to election day. It would be, and was, OUR day of reckoning.
On November 2, the election was held and the counting began.
On November 8, an attorney who is an admitted Ron Roberts supporter filed the first lawsuit in state court challenging my candidacy and requesting that the Registrar stop counting votes and a new election be held. A week later, after a lot of effort by my attorneys and others, on November 15th, the Court said NO.
On that very same day, November 15, three women, two of whom were Ron Roberts volunteers, brought an action in federal court alleging that I, along with the Mayor, City Attorney, and City Clerk, concocted a scheme to disenfranchise Republican voters. The court denied their request for a new election.
Then, on November 17, the League of Women Voters filed their lawsuit in an attempt to get all of my votes counted. I have consistently made known my belief that all the votes should be counted, not some, but all. And I believe that the League of Women Voters was correct to have brought their action on behalf of all voters. I thank them. The voters of San Diego, many of whom continue to e-mail me every day, also thank them for stepping in and fighting for what WE ALL KNOW is the right thing to do.
Thousands of San Diego voters have been denied their right to have their votes counted, and the system has failed the public. That's right, the system has failed. It's failed the voters, and it's failed every single person sitting up here today claiming to represent the will of the people.
When democracy fails, when the clear and unambiguous intention of thousands of voters is cast aside in favor of administrative efficiency, we all lose. We lose faith. Some will lose hope. Many will stop participating at all when the next election comes because to them, it says 'Sorry, your vote really doesn't matter.
To date, I have opposed all the legal challenges to stop counting the votes and will continue to oppose all challenges to have my candidacy declared invalid. But despite the court's ruling, that does not mean there will not be continued challenges to my candidacy. We are prepared to fight those as well and defend the public's right to vote for a write-in candidate.
My team and I have dedicated a lot of time, effort and resources defending the democratic process. We've defended the most fundamental aspect necessary in a democracy; we've fought to make sure every vote counts. That's all we've wanted all along, and nothing has, or will ever, change in this regard.
Let me be absolutely clear, I am not conceding anything, and I cannot in good conscience vote to certify an election where all of the votes cast were not counted.
My job is first and foremost to serve the public, and that's what I will continue to do. All I can say is thank you, from the bottom of my heart, for your support. I promise you that I will not rest until we've succeeded in creating an honest, open, and informed government."
Donna Frye for Mayor Campaign

Justices rules suit filed too late; swearing in set for today
By Greg Moran & Matthew T. Hall, UNION-TRIBUNE , Dec. 8, 2004
San Diego Mayor Dick Murphy is scheduled to be sworn in for a second term today after a state appeals court lifted a freeze on the certification of the votes in the mayor's race and rejected a challenge to the legality of the election.
The court's action yesterday, cleared the way for Murphy's swearing in more than a month after the Nov. 2 election.
Councilwoman Donna Frye told reporters she had not yet decided how to proceed after an appeals court yesterday rejected a challenge to the legality of the mayor's election, clearing the way for Mayor Dick Murphy to be sworn in for a second term today. Frye could file a legal challenge or seek a recount..
But the certification by San Diego County Registrar of Voters Sally McPherson also opens the door to a possible recount.
Any new legal challenge to the results would have to be mounted within the next 30 days, according to the state Elections Code.
McPherson certified the election about an hour after the 4th District Court of Appeal in Santa Ana issued its ruling in a suit filed by business lawyer John Howard on behalf of a voter.
The court ruled it should have been filed before Election Day.
The final tally showed Murphy defeating Councilwoman Donna Frye by 2,108 votes out of more than 450,000 cast, with county Supervisor Ron Roberts in third place.
A special council meeting is scheduled for 2 p.m. today to finalize the tally and swear in Murphy. Both moves have been on hold since the appeals court blocked the certification Nov. 30 to hear the appeal.
The mayor called yesterday's ruling "another defeat for the obstructionists who have attempted to frustrate the will of the voters."
What happened
A state appeals court lifted a stay that had prevented certification of the mayoral election results, which show Mayor Dick Murphy with a 2,108-vote lead. The registrar of voters then certified the results.
The court declined to consider a suit challenging the election's legality because it included a write-in candidate, Councilwoman Donna Frye.
What's next
The City Council will hold a special meeting at 2 p.m. today to certify the results, allowing Murphy to be sworn in.
Frye can ask for a recount or challenge the results in court.
The 9th U.S. Circuit Court of Appeals has agreed to hear arguments in a case similar to the one before the state appeals court, but has declined to stop certification. Frye said it's unlikely she will vote for certification today because "all the votes were not counted."
A recount must be requested by 5 p.m. Monday under the Elections Code, but Frye said she hasn't decided how to proceed and said everything – including a legal challenge and a recount – is being considered.
Frye said the decision may hinge on her ability to pay her legal bills. She has asked the city's Ethics Commission if she can establish a fund to collect contributions up to $250 per person to cover the costs of a challenge.
As of last week, Frye, who has not filed a suit of her own, had incurred at least $30,000 in legal costs over the three election-related suits.
In a 10-page decision written by Presiding Justice Dennis Sills, the appeals court held that Howard's suit claiming Frye's write-in candidacy was illegal and a new election be ordered should have been filed before the voting took place.
The justices said the state Elections Code provides the legal scheme for bringing a pre-election challenge. When the plaintiff, lawyer Thomas McKinney, who works with Howard, failed to do so, he lost his opportunity. Howard is a Roberts supporter.
"He had a remedy prior to the election if he had been willing to exercise it," Sills wrote.
Timeliness was much discussed in this case, both at the appeals court level and when the case was heard in San Diego Superior Court Nov. 15.
There, retired Judge Charles Jones also said the suit was too late, but under a different legal theory.
Lawyers for the city and Murphy had argued that the suit was tardy and should be thrown out.
"The core of the ruling is if a problem exists with the ballot – the language, or who is on it – and you want to challenge, you have a duty to do that before the election," said Bob Ottilie, Murphy's lawyer.
"And if you miss your chance, you're out of luck."
The justices did not address whether allowing Frye on the ballot violated the city charter. They said they did not have to decide the apparent conflict in which the charter appears to ban write-ins, while the municipal code does not, to resolve the appeal.
The justices also cited the "need for stability in elections" in their ruling. Sills wrote there was "no doubt that in this case any arguable violation of the charter was discoverable pre-election."
Howard contended his client – and most voters – were not aware of the conflict. Sills said that position was "untenable."
"It means that voters can close their eyes and not check an election for irregularities – here, for example, with the mailing of the sample ballot – and wait to see if an ineligible candidate has an effect on the outcome," Sills wrote.
To allow that "would seriously destabilize California election law, which has the advantage of specifically encouraging pre-election challenges in order to avoid this sort of instability," concluded Sills.
The Santa Ana court was assigned the case because several justices in the San Diego appeals court removed themselves from hearing the matter, leaving too few justices to create a panel.
They did not cite a reason for removing themselves, but Murphy is a former San Diego judge.
Howard said he was weighing whether to ask the state Supreme Court to review the decision – a move that election law expert and Loyola Law School professor Rick Hasen said is a long shot.
"I think that would be very unlikely, given the holding in the ruling here," he said.
Howard also is considering filing a new challenge.
"We're looking very closely as to whether our situation fits into a post-election challenge under the Election Code, and if it does we will file it," he said.
Murphy has now been on the winning side in a half-dozen court decisions in the three suits, and Ottilie said yesterday's is the most important.
"I think this is the final blow to the post-election lawsuits," he said. "We've had six court rulings. All have favored upholding the election. This one in particular is, I think, a knockout blow to this particular case."
But the Frye campaign still has options.
She is pinning her hopes on what her supporters contend are thousands of ballots left out of the final tally on which voters wrote in her name but neglected to fill in an oval bubble next to it.
McPherson said state law prohibited her from counting those votes – a decision that a second Superior Court judge supported when he turned aside a request from the League of Women Voters of San Diego to have them counted.
The league said it will not appeal that ruling, but Frye could. Or she could mount her own suit.
Last Friday, one of her attorneys, Marco Gonzalez, said a suit is "a strong possibility" but not a certainty.
"We feel compelled to do whatever we need to get those votes counted," he said. "We want to put those thousands of votes in front of a judge and force him to say those don't count."
To get at the disputed ballots would require a recount. McPherson said a complete manual recount would cost $150,000 to $200,000.
While there is still uncertainty, some community leaders welcomed yesterday's decision.
"It is nice, finally, to have an answer," said Mitch Mitchell, vice president of public policy at the San Diego Regional Chamber of Commerce. He said it is time for Murphy to lead.
"Any action that he takes now, he has the official title of the mayor of San Diego, and that action has some muscle behind it," he said. "Now the expectation is that he will move forward with the city attorney, Mike Aguirre, and begin to right the ship.
"There isn't any time to catch your breath."

Court rejects S.D. mayoral election suit
By Greg Moran, UNION-TRIBUNE, December 7, 2004
A state appeals court lifted its hold on the certification of the San Diego mayor's race today, apparently clearing the way for Mayor Dick Murphy to be sworn in for a second term.
The court rejected an appeal contending the election was unlawful because Councilwoman Donna Frye should not have been allowed to run as a write-in candidate.
The court found the challenge should have been filed before the election and its finding was independent of the issues of whether Frye's candidacy was legitimate and whether contested write-in ballots should have been counted.
To rule in favor of the challenge, the court wrote: "would seriously destabilize California election law, which has the advantage of specifically encouraging pre-election challenges precisely in order to avoid this sort of instability."
The ruling by a three-justice panel of the 4th District Court of Appeal in Santa Ana was unanimous, and appears to remove the largest obstacle standing between Murphy and a second term.
However, there are still two other lawsuits outstanding, and Frye could ask for a recount after the certification.
Murphy led Frye by 2,108 votes out of more than 450,000 cast in the Nov. 2 election with County Supervisor Ron Roberts finishing third, according to the official tally.
The Santa Ana court heard the case because the San Diego appeals court recused itself from the case without explaining why, although Murphy's background as a local judge may have been a factor.
The lawsuit was filed by a voter and centered on a conflict between the City Charter and the municipal code regarding the legality of write-in candidates in the general election.
While one section of the charter appears to ban write-ins, stating only the top two finishers in the primary will advance to the general election, a section of the municipal code says write-ins are allowed in all elections.
Lawyer John Howard, a Ron Roberts supporter, filed the suit on behalf of the voter. He contended Frye's candidacy was illegal and a new election between Roberts and Murphy should be held.
Attorneys for the city countered that the charter does not specifically ban write-ins, and City Clerk Charles Abdelnour acted properly when he allowed Frye on the ballot.
The city lawyers, as well as those for Frye, also contended that Howard and his client waited too long to file a suit, which they said ought to have been brought soon after Frye's well-publicized candidacy began.
A retired Superior Court Judge ruled on Nov. 15 that Frye's candidacy was legal and "authorized" by the actions of city officials. The judge also agreed that the suit was not filed on time.
Two weeks later Howard filed a writ – a kind of emergency appeal – to the state appeals court. On the day that county Registrar of Voters Sally McPherson was to certify the vote the appeals court blocked that move and scheduled the case for arguments.
On Friday, a contingent of San Diego lawyers trooped to the Santa Ana appeals court and were grilled for an extraordinary 90 minutes by the three-judge panel.Court clears path for Murphy

San Diego mayor's inauguration delayed by court
By Ben Fox, ASSOCIATED PRESS, Dec. 3, 2004
SANTA ANA, Calif. ¶ A swearing in ceremony for San Diego Mayor Dick Murphy was put on hold Friday until a state appeals court can decide the fate of a challenge to an election that was thrown into disarray by the write-in candidacy of a maverick city councilwoman.
A panel of the 4th Appellate District heard arguments for more than 90 minutes in Santa Ana, but the presiding judge said they would need several days to issue a ruling on whether the San Diego County Registrar of Voters can certify the disputed results of the three-way race.
That means there won't be a decision in time for Monday's scheduled swearing-in ceremony for the incumbent Murphy, who, under San Diego's bylaws, will stay on as mayor until the issue is settled, said Deputy City Attorney Jim Chapin.
If the three-judge panel allows the certification to proceed, a new ceremony could be scheduled quickly despite the looming possibility of additional legal challenges, Chapin said.
"Obviously, we need to move forward. We have a lot of issues to deal with," he said.
But the panel, in questioning attorneys on various sides of the three-way battle, suggested the possibility that they might order a new election. Each judge seemed troubled by the provision in San Diego's City Charter, a municipal constitution, requiring "only two" mayoral candidates.
Lawyers for a supporter of Ron Roberts, who came in third, argue that the charter forbids the type of write-in campaign mounted by Councilwoman Donna Frye, a surf shop owner and clean-water activist with wide appeal in a city beset by corruption allegations and a pension fund scandal.
Attorney Mike Neil, arguing for the Roberts supporter, said the election should be declared invalid since Murphy's narrow margin over Frye doesn't reflect the will of the people.
"We need a mayor elected by the majority of voters, not one third," said Neil, a retired Marine Corps general.
Lawyers for the city and Murphy maintain that write-in candidacies are permitted under city law and that, in any case, the legal challenge to Frye's bid was filed too late. A state judge refused to block the certification of the results, sending the matter to the panel in Santa Ana.
The latest tally shows Murphy with 34.5 percent of the vote, Frye with 34.1 percent and Roberts with 31 percent.
Frye trails Murphy by 2,108 votes, but that count excludes ballots on which voters wrote her name but failed to darken the adjoining oval. The councilwoman estimates that up to 5,000 of her supporters neglected to fill in the bubble.
She has yet to decide whether to challenge a state judge's ruling that allowed the registrar to reject ballots with empty bubbles, said Rory Wicks, an attorney for the councilwoman.
Also Friday, the 9th U.S. Circuit Court of Appeals denied an appeal of a similar federal lawsuit filed by three voters who sought to order a runoff between Murphy and Roberts. Earlier this week, a federal judge in San Diego said the voters, who filed their lawsuit 10 days after the election, had waited too long to complain.

Frye apparently girds for battle in mayor's race
By Elliot Spagat, ASSOCIATED PRESS, Dec. 1, 2004
SAN DIEGO ¶ A city councilwoman said Wednesday she would not be deterred by the messy legal battle surrounding her write-in bid for San Diego mayor, suggesting that a long fight may lie ahead.
Donna Frye said that she is weighing "about 30" legal strategies and may be willing to pay for a recount.
"Patience is power," she told reporters. "In a democratic society, things take time and things sometimes become uncomfortable for people. It's nice to have the easy solution, the happy ending, for everything to go quickly and easily, but it doesn't always work out that way."
Frye spoke after the council certified the Nov. 2 election for city attorney, a city councilman and several ballot measures, including one that gives more power to the mayor ¶ whomever that might be. On Tuesday, California's 4th District Court of Appeal stopped the county registrar from certifying the mayoral election in one of three lawsuits that have been filed over Frye's candidacy.
The lawsuit says the city violated its own charter by allowing Frye to run as a write-in and should have limited the field to the top two finishers in the March primary ¶ incumbent Dick Murphy and San Diego County Supervisor Ron Roberts. A state judge has rejected that argument, saying that any complaints should have been filed before the election.
The lawsuit was filed by San Diego attorney John Howard, a Roberts supporter. After the election, Roberts criticized the city for allowing Frye to run but has stopped short of joining the lawsuit.
Roberts, who finished third in his third try for the job, rejected renewed calls by Murphy and Frye to denounce the legal challenge.
"The city never should have never been put in this position," Roberts said Wednesday. "If there are people who feel disenfranchised because the city failed to abide by its own charter, then they certainly have a right to take their complaint before a judge."
The latest tally shows Murphy with 34.5 percent of the vote, Frye with 34.1 percent and Roberts with 31 percent.
Frye trails Murphy by 2,108 votes, but that count excludes ballots on which voters wrote her name but failed to darken the adjoining oval. Frye estimates up to 5,000 of her supporters neglected to fill in the bubble.
Frye has yet to decide whether to challenge a state judge's ruling that allowed the registrar to reject ballots with empty bubbles.
"I am talking to my attorneys and I absolutely am looking at about 30 possibilities," she said.
The city attorney's office issued an opinion late Tuesday that says Murphy can remain in office if the vote isn't certified by Monday's scheduled inauguration.
"I think that tying this is up in the courts is very bad for the city," said Murphy, who has declared victory. "We need to get this election behind us ... I got the most votes. I should be the next mayor."
Lawyers prepare for toughest argument against throwing out vote
Lack of timeliness has crippled post-election claims
By SCOTT LEWIS, The Daily Transcript, December 1, 2004
Lawyers hoping to invalidate San Diego's mayoral election are trying to craft a case that will survive what was the death blow to the previous tries: the argument that their complaints simply come too late.
A local and federal judge both have invoked a legal doctrine known as "laches" while denying requests that they throw out the Nov. 2 election. The local case has moved to the Fourth District Court of Appeal in Santa Ana where a hearing is tentatively scheduled for Friday.
Laches, or the doctrine of "stale demand," allows justices to deny relief to parties that may be making their cases to the court only after an "unconscionable delay." While the merits of a plaintiff's complaints may indeed stand up in a trial, it doesn't matter because they essentially "sat on their rights," as Judge Charles Jones declared on Nov. 15.
The question of whether too much time has passed for the complaint to have any teeth is overshadowing the legal debate at the heart of the matter: Whether city officials should have allowed Councilwoman Donna Frye to be a valid third candidate in a runoff election apparently set up to ensure that one candidate receives more than 50 percent of the vote.
Local attorney John Howard, of J.W. Howard/Attorneys, claimed he did not file his challenge to Frye's candidacy -- now known as McKinney v. the city of San Diego -- because he was not aware of the apparent conflict between the charter and the city's municipal code.
The timing of the lawsuit, Howard said after he filed it, had nothing to do with the fact that his preferred candidate in the race had apparently lost in the ballot count. Howard had financially supported County Supervisor Ron Roberts' candidacy.
"The reason it is happening now is that I wasn't paying attention to this kind of legal issue during the election process, as I was busy with my nonpolitical clients," Howard said in an earlier interview.
But a similar plea was rejected Tuesday by United States District Judge Irma Gonzalez, who refused to rule the election invalid in response to a similar but separate claim by other Roberts' supporters.
"If the defendants prove that the complainants were apprised of sufficient facts to file suit in ample time before Election Day, the invalidation remedy may be withheld regardless of the merits of the complaint," Gonzalez wrote.
Gonzalez said plaintiffs had access to the facts underlying their claims many weeks ago.
"Because plaintiffs delayed filing their federal lawsuit, defendants proceeded with election preparations, printed ballots and held the election," Gonzalez wrote. "The deputy city clerk estimates that the cost of a new election could exceed $2 million."
Once reluctant to say whether he had any legal concerns about the election's validity, incumbent Mayor Dick Murphy said Tuesday he believes that a legal election took place and that he won it.
"The election was legal in all aspects, every court that has ruled on this has said that," Murphy said.
He said the two judges' allusions to the laches doctrine doesn't mean that the case would have been valid if plaintiffs would have brought it to the court's attention before the election.
"To some extent they never even ruled on the merits of the conflicts between the municipal code and the city charter because you never have to get to that issue if you find that the lawsuit was filed too late," Murphy said.
On previous occasions Murphy had refused to rule out the possibility that he might instigate his own post-election legal petitions. On election night, Murphy had hinted that he may have legal concerns about the election's validity.
And when asked Nov. 9 whether he believed a legal election had taken place, Murphy said, "You'd have to go to (City Attorney) Casey Gwinn's press conference to ask that question."
After hearing of Gonzalez' ruling Tuesday, Frye said that the court told plaintiffs they had filed their complaints too late.
She took that as an affirmation of her candidacy.
"Once again another court ruling has validated the legitimacy of my write-in campaign and the over 155,000 votes that I received," Frye said.
An amicus brief filed alongside Howard's appeal to the Fourth District Court tackles the question of laches head on.
Former judge and city councilman Larry Stirling, represented by the firm Baker and Hostetler LLP, claims that the election should not be considered invalid, there should simply be no winner.
Stirling, who also writes a weekly column for The Daily Transcript, claims that since no candidate received more than 50 percent of the vote, no candidate can claim to have won the election.
He said his complaint now is timely because the argument, made any earlier, would only have been considered a "speculative possibility."
"Until the city clerk declared an intention to certify the candidate receiving the largest plurality of the vote, the issue was not ripe for adjudication," Stirling said.
Roberts, in a statement of his own Tuesday, said the city should not have ever found itself in this position.
"If there are people who feel disenfranchised because the city failed to abide by its own charter, then they certainly have a right to take their complaint before a judge," Roberts said.

San Diego Elects Murphy Mayor, But Lawsuits Remain
By Tony Perry, The Los Angeles Times, Friday 19 November 2004
San Diego - Mayor Dick Murphy has outpolled write-in candidate Councilwoman Donna Frye by 2,200 votes in unofficial results released late today, but the election remains unsettled until three lawsuits are resolved.
The unofficial tally was released after days of radio talk show fulmination, national publicity, hand counting by election workers, and general angst among the politically involved segment of the local citizenry.
Election officials said all votes have been counted except a small number of votes from military personnel stationed abroad.
"The only thing hindering us now are lawsuits," Murphy said after the results were announced. "We hope a judge rules in our favor quickly so we can get back to the business of the city."
Two lawsuits are attempting to have Frye's candidacy ruled illegal and have a new runoff held between Murphy and county Supervisor Ron Roberts.
A third lawsuit seeks to force county registrar of voters Sally McPherson to count write-in votes for Frye that have been excluded because voters did not darken the oval on the left of the line where they wrote Frye's name.
Although it is unknown how many "empty oval" votes exist for Frye, her loyalists believe there may be four to five thousand, enough for her to overtake Murphy's lead.
The election, one of the more unusual in the history of California's second-largest city, has pitted business leaders who favored Murphy and Roberts against environmentalists and labor union leaders who backed Frye.
Frye's resume - surf shop owner, wife of surfing legend Skip Frye - and her meteoric rise in local politics brought national attention to what was otherwise a lackluster contest between two Republicans with long years of public service.
Frye, 52, a Democrat, entered the race five weeks before election day. Her write-in candidacy was approved by long-time City Clerk Charles Abdelnour, with no objection from City Atty. Casey Gwinn.
She campaigned on a premise that she could do a better job fixing the city's financial problems.
She is the only council member to vote against the city's underfunding of the employee pension plan - which has a $2 billion deficit. She has often boycotted closed-door meetings of the council.
After Frye appeared to outpoll Murphy and Roberts on election day, two lawsuits alleged that her candidacy was illegal under the City Charter, which does not permit write-in candidates in runoff elections.
But a Superior Court judge, brought in from Imperial County after local judges were recused, refused to stop the vote-counting and declared, "Let the people's voice be heard." A second lawsuit is pending in federal court.
On Wednesday, the San Diego League of Women Voters filed a suit to force election workers to count write-in ballots even if voters did not fill in blank ovals next to the line where they had written Frye's name.
McPherson has refused to count such ballots, citing state law that requires that the ovals be darkened.
Judge Charles Jones, who rejected the suit challenging Frye, is set to hear the League of Women Voters case Monday. The league, which has taken no sides in the race, says it is fighting for the principle that all votes should be counted.
Frye had earlier blasted the two lawsuits aimed at disqualifying her, but today declared her support for the League of Women Voters suit.
"I have nothing but admiration and respect for the League of Women Voters and their desire to defend the fundamental right to vote and to have every vote count," she said.
An attorney representing Murphy is contesting the League of Women Voters suit. Attorney Bob Ottilie argues that the rule about darkening in the ovals was well publicized by the Frye campaign, the registrar, and even the League of Women Voters on its website.
In another high-profile local race, activist attorney and former federal prosecutor Michael Aguirre has beaten Executive Assistant City Atty. Leslie Devaney to succeed termed-out City Atty. Casey Gwinn.

Judge Refuses To Issue Restraining Order To Stop Mayoral Election
Another Lawsuit Expected To Be Filed Within Days
November 16, 2004, 10News.comSAN DIEGO -- A federal judge Tuesday refused to issue a restraining order to stop the certification of the mayoral election, which write-in candidate Donna Frye is leading, with more votes still to be counted.
But U.S. District Judge Irma Gonzalez said she will convene another hearing Nov. 30 to decide whether to issue a preliminary injunction that would prevent the certification of the election.
Three plaintiffs are also asking for a new election, with Mayor Dick Murphy and county Supervisor Ron Roberts as the only candidates.
Frye leads Murphy by 956 votes with 35,000 provisional ballots still to be counted, officials said. The Registrar of Voters Office is expected to finish the count by the end of the week.
Not all the write-in votes have been certified for Frye, officials said.
"We feel that the case (on whether Frye's last-minute candidacy should have been allowed) still has no merits," the councilwoman's attorney, Marco Gonzalez, said outside the federal courthouse.
Blair Krueger, an attorney for the plaintiffs, told the judge his clients' voting rights were diluted when officials failed to follow the City Charter and allowed Frye's write-in candidacy five weeks before the election.
"The Charter forbids write-ins in general elections," Krueger said.
The attorney said the city's conduct rendered votes in the primary election "meaningless."
Frye "had the opportunity to participate in the primary election and decided not to," Krueger told the judge.
The judge said the defendants in the case -- the county and city of San Diego -- had the legal burden to prove the lawsuit should have been filed when the plaintiffs found out Frye's candidacy was being allowed.
Gonzalez said she would hear evidence at the Nov. 30 hearing on whether the plaintiffs' equal protection claims have any merit.
"We're very pleased with the results," Krueger said outside court. "We're very happy with what the judge did today."
Monday, a retired Superior Court judge denied a request for a temporary restraining order to stop the vote count in the mayoral race.
Another Lawsuit Expected To Be Filed Within Days
According to 10News, another lawsuit is expected to be filed Wednesday on behalf of the people who voted for write-in candidates but did not fill in a bubble on the optical scan ballots.
Registrar of Voters Sally McPherson said, "If the bubble is not filled, in the machine doesn't identify it because the law does state that the bubble must be filled in."
The League of Women Voters said a set of simple instructions may have left hundreds, even thousands, of voters disenfranchised. The instructions talked about filling in the bubble. But when it came to "write-in candidates," they simply said write in the names on the lines provided.
"The intent is clear. If you write in someone's name, that's who you intended to vote for," said Norma Domicheck, from the LWV.
McPherson is storing the ballots that clearly have Frye's name in the write-in space but the bubble is not filled in. She said there's no way to tell exactly how many there are, but there are a lot of them.

Judge refuses to halt vote count in San Diego mayor's race
By ELLIOT SPAGAT, San Diego Daily Transcript, The Associated Press, November 15, 2004
SAN DIEGO (AP) -- A retired judge on Monday refused to halt the vote count in the mayor's race, dealing a severe blow to a legal challenge to derail a write-in campaign mounted by a maverick city councilwoman.
The decision in San Diego County Superior Court came as the vote tally showed the race tightening between Councilwoman Donna Frye, a 52-year-old surf shop owner, and Mayor Dick Murphy.
Retired Judge Charles Jones stopped short of dismissing the lawsuit, but said that Frye's opponents had waited too long to challenge her campaign. When Frye entered the race five weeks before the Nov. 2 election, there were "no protests, no cries of illegality, no lawsuits."
"It was just the sound of silence," Jones said.
Attorney John Howard, who brought the legal challenge to the write-in campaign six days after the election, called it a defeat and planned to appeal.
At issue in the lawsuit is a provision of the city charter that says the election must be a runoff between the top two finishers in the primary -- in this case, Murphy and county Supervisor Ron Roberts. Frye's critics say the charter trumps the city's municipal code, which has allowed write-ins since 1985.
Frye, in court papers filed Monday, said "there is no excuse for (the) unreasonable delay" in filing a lawsuit. Last week, she called the courtroom maneuvering a case of "sour grapes," and said any legal challenge should have been filed before the election.
Jones said the city charter was not the final arbiter of city's elections process.
The presiding judge of the San Diego County Superior Court last week recused all 124 judges on the bench from the lawsuit because Murphy was a San Diego judge for 15 years before he was elected mayor in 2000. The case was referred to Jones, a retired jurist from Imperial County.
Another lawsuit, filed Friday in federal court, asks that the county registrar of voters be prevented from certifying the results and that another election be held pitting Murphy against Roberts -- two Republicans who faced off in 2000.
The campaign was shaping up as a dull rematch until Frye, a Democrat, jumped in five weeks before the election. City Clerk Chuck Abdelnour certified her as a write-in candidate, and no one filed a formal complaint during the short campaign. Frye appeared in five televised debates with Murphy and Roberts.
As of Monday, all write-ins had 151,759 votes, or 34.7 percent. Murphy had 149,928 votes, or 34.3 percent. The vast majority of the write-ins are for Frye, though it may take until Nov. 30 for the registrar to finish the tally.
Roberts, a county supervisor who made his third run for mayor, trailed with 135,486 votes, or 31 percent. About 50,000 absentee and provisional ballots still had to be counted.
The mayoral question comes during uneasy times for nation's seventh-largest city. Federal investigators are probing the city's financial practices amid questions about whether officials hid bad news from investors and taxpayers.
Three of nine members of the City Council were indicted last year on charges of taking bribes from a strip-club owner who wanted to ease restrictions on touching dancers. And last week, City Manager Lamont Ewell said he was quitting after seven months on the job, citing voter approval of a measure that gives more authority to the mayor. Many supporters of the so-called "strong mayor" system of government are upset that the first person to exercise the new power may be Frye, who actively opposed the ballot measure.
Frye has antagonized some business leaders, particularly those who want to channel money into the city's thriving downtown. She has been on the losing end of council votes to expand the SeaWorld theme park and sign a new lease with the NFL's San Diego Chargers.

Mayoral election, Round II: The establishment strikes back
By Ron Carrico, San Diego Daily Transcript , November 11, 2004
The biggest surprise of this election season is the possible election of Donna Frye as a "strong mayor." It is the ultimate irony for the power elite of San Diego politics. They must feel like Darth Vader would if Luke Skywalker were voted captain of the Death Star.
I don't like to sound like a conspiracy theorist by referring to a vague group of "power elite" or "City Hall insiders." But there really is a fairly small group of people and organizations in San Diego that consistently got what they wanted in the past decade, be it sports team subsidies, the convention center expansion or the infamous NTC giveaway.
For years, members of this group have tried to change our City Charter to create what is referred to as a strong-mayor form of government -- that is, giving the mayor a much stronger role in city government. Opponents have noted that it is a ploy to give insiders more bang for their political buck. Apparently, it's cheaper and quicker to influence one mayor than the whole City Council.
Now it appears that the insiders' dream has come true -- along with their worst nightmare. Proposition F, the strong-mayor proposal, passed. But it looks as if Frye, a liberal independent thinker more concerned about the common good than fattening the wallets of a selected few, is winning the runoff vote for mayor.
Before Nov. 2, some questioned the legality of write-in candidates in a runoff election. There is some dispute whether City Clerk Charles G. Abdelnour asked for an opinion from City Attorney Casey Gwinn, whether there was an answer and what that answer might have been.
In 1985, California Supreme Court case Canaan v. Abdelnour struck down a San Diego municipal code which prohibited write-in candidates in municipal elections. Thereafter, in attempt to comply with the Canaan ruling, the city changed its Municipal Code, Chap 2, Art 07 Div 03, to read: "Write-in candidates are permitted in municipal elections including special elections called by the City Council, pursuant to Section 27.0107."
Unfortunately, the city attorney and City Council forgot about City Charter, Article 2, Section 10, which states: "All elective officers of the City shall be nominated at the municipal primary election. In the event no candidate receives a majority of the votes cast ... the two candidates receiving the highest number of votes ... shall be the candidates and only candidates ... and the names of only those two candidates shall be printed on the ballots to be used at the general election."
The reason given for this winnowing of candidates, from many down to just two, is to ensure that the winning candidate has a majority, not a plurality, of voters. Nice, but not necessary.
The discussion now is which takes precedence -- the City Charter or the Municipal Code? Fortunately, that was decided by a 1894 case called Ex parte Roach, 104 Cal.272. This says in essence that a city charter confers the power to the municipal code, but "any inconsistency between the two is to be resolved in favor of the ordinance."
So even though the City Charter says the registrar can only print the names (without mentioning write-ins) of the runoff candidates, the San Diego Municipal Code allows write-in candidates. Therefore, the Municipal Code trumps the City Charter and the write-in ballots should be deemed valid.
The real issue for the power brokers of San Diego is not that Donna Frye was a write-in candidate. The real issue is that the strong mayor they have hoped for so long will not be their strong mayor. Let's face it, for insiders with Donna Frye as mayor, the "Force" of the strong mayor would not so predictable.
The judge who considers this case could avoid ruling on the merits of the case, as the plaintiff may not have "standing" to bring the action, or rule that the case is moot. The plaintiff in this case is a voter, not a candidate, who is trying to invalidate the entire ballot by questioning the legality of writing in Donna Frye. The principal cases in this area are generally filed by, or on behalf of, a candidate who wants to be written in on the ballot prior to the election. Here, the plaintiff is trying to invalidate the ballot after the election, when the Municipal Code clearly says that write-in candidates are acceptable in municipal elections.
One telling fact is who is actually behind this action. The attorney for the plaintiff, John Howard, is associated with George Mitrovich.
Mitrovich, who has been on the outs with the Murphy/Kern administration, is back in the political game, as he often is when the downtown power elite wants something. Mitrovich was a big proponent of the Padre ballpark, the Charger lease extension in 1996, and was involved in the committee of citizens that did a study of the strong-mayor form of government a few years ago. That study, as I recall, was funded by contributions from insiders such as John Moores, Malin Burnham and Peter Q. Davis.
I am guessing the reason the city attorney's office didn't unravel the write-in legal discrepancies prior to the election was that they thought Donna Frye would have no chance. But they didn't count on the fact that the people of San Diego are tired of what they see as an insider's game of political connectivity and corruption.
It has been suspected by so many for so long -- and then the FBI and SEC announced investigations into the city's financing. Meanwhile, council members are being prosecuted and the city pension program has been deliberately underfunded.
Are people sick of it? You bet -- so why vote for the same old guys, Roberts and Murphy, when you can shake things up with Frye?
We should hope there are sharp attorneys ready to join Donna's team and fight the forces of the dark side.
Carrico is a San Diego attorney.

Culture of Secrecy Costs Taxpayers and Harms City’s Credit Rating
FRYE IDENTIFIES SOLUTIONS, Oct 28, 2004, Today, Mayoral write-in candidate Donna Frye provided solutions to address the delay in the issuance of the City’s 2003 Annual Financial Report.
“All of these issues are a direct result of the culture of secrecy that exists today,” said Frye. “As Mayor, I will change immediately the culture of secrecy by demanding full and complete disclosure, ending the secret meetings and fully cooperating with all requests for documentation. The public has a right to know how the public’s business is being conducted.”
Frye was the only elected official and mayoral candidate who took action to address the culture of secrecy and the City’s pension problems before they became national headlines. In November 2002, Frye voted to oppose the continued practice of increasing benefits that added to the underfunding of the pension. Frye also sent a letter to the City Attorney questioning the legality of closed session meetings in relation to the City’s sewer cost of service study. Because of Frye’s action, the cost of service study was made public saving the City a potential loss of over $200 million.
In April 2003, Frye demanded and received an audit of the City’s retirement system by an outside auditor. In March 2004, Frye pushed through and implemented major changes to the City’s closed session practices. One of those changes, Proposition D, if approved by the voters, will amend the City Charter and require full public access to government documents. Frye also has refused to participate in closed door meetings related to the Vinson & Elkins report and the SEC investigation believing that it was not in the public’s best interest to do so.
“I refused to be a part of the closed door meetings,” Frye stated. “Full disclosure of the information requested by the SEC and KPMG should have happened in public. Now, we will spend even more money to ensure that the City’s financial reports are issued.”
Frye called for an immediate release of all information so that KPMG can issue the city’s financial report, full cooperation with the agencies conducting the investigation, and assembling a new team who will disclose all the information needed to find out the truth.
“Once again, the culture of secrecy and business as usual is costing the taxpayers more money and harming our City’s credit rating. It is one of the reasons that I decided to run for Mayor; we must take action and stop playing politics with our future. I have solutions and a proven record of accomplishment. My actions match my words.

Appellate court: No mayor yet, Judge halts vote certification; possible hearing Friday
By SCOTT LEWIS, The Daily Transcript, Nov.30, 2004
Just as the long search for a valid winner of the San Diego's mayoral election appeared to be coming to an end, the Fourth Appellate District Court of Appeals injected a new dose of intrigue Tuesday, acting quickly to keep officials from certifying the vote.
While not actually agreeing to hear the appeal of local attorney John Howard, the court, based in Santa Ana, did give lawyers until Thursday to persuade it to consider invalidating the Nov. 2 mayoral election. The appeal in McKinney v. the city of San Diego also asks that the court order the city to hold a new runoff election in which incumbent Mayor Dick Murphy and County Supervisor Ron Roberts are the only candidates.
Presiding Judge David G. Sills announced that he might set the matter for oral argument on Friday in Santa Ana.
The news landed forcefully on a City Hall already tense after months of controversy bordering on scandal, bitterly contested campaigns for office and now several weeks' worth of legal haggling over not only who won the mayoral race, but whether it was even valid.
During an impromptu discussion of the developments during Tuesday's City Council meeting, Councilman Jim Madaffer called City Hall "comedy central."
Councilwoman Donna Frye, whose abrupt entry in the race for mayor as a write-in candidate is the subject of much of the controversy, said she wanted to point out she had not filed any lawsuits in the matter.
"I have only been in the process of trying to defend my ability to be a write-in candidate," she said during Tuesday's meeting.
In a separate decision released later on Tuesday, U.S. District Judge Irma Gonzalez refused to order a new runoff election for mayor.
After Tuesday's City Council meeting Frye told reporters that she might never concede defeat in the election to incumbent Mayor Dick Murphy.
Murphy declared victory in the race on Nov. 19.
According to the County Registrar of Voter's latest results, Murphy still led the race with 157,959 votes or 34.53 percent, Ron Roberts received 141,884 or 31.01 percent, and Frye had 155,851 verified write-in votes.
After Tuesday's Appellate Court decision was released, Mayor Murphy called the judge's action "prudent" and said he hoped the issue would be resolved soon.
Murphy had been reluctant to say that he would not get involved in the post-election litigation. But Tuesday he changed his stance.
"That door is now closed," he said. "It's really important to get this all resolved. I don't intend to be a plaintiff in any lawsuit."
Howard, the attorney challenging the election's validity in state court, claims officials should have never allowed Frye to become a valid write-in candidate. The city's charter appears to prohibit write-in candidates from participating in final runoff elections for city posts -- presumably to ensure that the winning candidates gain approval from a majority of voters.
City policy, however, has allowed write-in candidates since 1985 when the California Supreme Court ruled that write-in candidates should be allowed. A later court ruling, however, reversed that position. City officials, however, never updated the policy leaving the charter in conflict with the municipal code.
Mitch Mitchell, vice president for public policy at the San Diego Regional Chamber of Commerce, said he hoped the issue would be resolved soon.
"We are a city without a mayor, without a bond rating and a city in desperate need of some forward progress," Mitchell said.
Staff writer Kevin Christensen contributed to this report.

League won't appeal ruling
Union Tribune, November 23, 2004, SAN DIEGO – The League of Women Voters said Tuesday it won't appeal a ruling that write-in votes cast in San Diego's mayoral race should not be counted if an oval box next to a candidate's name was left blank.
Kay Ragan, president of the nonpartisan League's San Diego chapter, said Monday's ruling by retired Tulare County Judge Eric Helgesen was a "disappointing blow to the voters of San Diego."

Murphy one step closer to another four years, Judge won't push registrar on bubbles
By SCOTT LEWIS, San Diego Daily Transcript, November 22, 2004
A judge Monday refused to force the San Diego County Registrar of Voters to count any of the write-in ballots for mayoral candidate Donna Frye on which residents neglected to fill-in an oval next to her name.
The ruling adds another bit of certainty to the conclusion that incumbent Mayor Dick Murphy won re-election Nov. 2. Two other lawsuits questioning the validity of the election remain unresolved.
Judge Eric Helgesen, a retired jurist from Tulare County, said he did not feel Frye's supporters and the League of Women Voters would prevail in a trial with their claim that the registrar illegally discarded potentially thousands of ballots.
"It was clearly the right ruling under the law," said Bob Ottilie, who represented Mayor Murphy at the hearing.
Frye's counsel had a different reaction.
"Today marks a pretty sad day for the San Diego electorate. That the incumbent mayor would advocate disenfranchising (up to) 30,000 voters is a sad indication of the potential leadership of our city," said Frye's attorney, Marco Gonzalez.
Ottilie, in a long recitation of California state elections law, argued to the judge that voters who had failed to fill in the bubble cast "unlawful" ballots that no legal code required officials to recognize.
"All three of these candidates needed two things to occur in order to have a lawfully cast vote come to them: One, they needed to get their name on the ballot; two, they needed to have their votes cast," Ottilie said.
Murphy and County Supervisor Ron Roberts got their names on the ballot after participating in the primary election, he said. Frye's supporters had to write-in hers. The vote came when voters filled in the bubble, Ottilie argued.
The League of Women Voters, represented by San Leandro-based attorneys Thomas A. Willis and Karen Getman, argued that the registrar had corrected many ballots in which voters may have "overvoted" for Murphy or other candidates. An overvote might come when a resident both fills in the oval next to a candidate's name and then fills that candidate in as a write-in.
"We want that same standard applied to write-in votes," Getman said. "That little bubble, in fact, has no use in this election."
Timothy Barry, who defended the county's decision not to count votes that lacked the filled-in oval, said the registrar was only following state law that was clear on the matter.
Getman seemed to agree that state law had specific provisions mandating enforcement of technicalities like the rule requiring the bubble to be filled in.
She said, however, that city law read differently. And although the city consolidates its own elections with other local, state and federal contests, it does not "abrogate" its own charter laws.
Judge Helgesen did not dismiss the league's lawsuit, but after the ruling, Ottilie and others called on the league and others to drop their claims

Write-in candidate turns in strong showing for San Diego mayor
By Elliot Spagat, 10:28 a.m. November 3, 2004Associated Press
San Diego mayoral candidate Donna Frye speaks at a news conference Wednesday in San Diego.
SAN DIEGO – A surfer-turned-politician who mounted a write-in challenge to San Diego's established leaders appeared to hold a slim lead over the incumbent mayor, preliminary results showed Wednesday.
But election officials cautioned that the final tally would not be known for several days as workers counted the thousands of write-in ballots and added in absentee and provisional ballots.
City Councilwoman Donna Frye, who criticized Mayor Dick Murphy's financial leadership and a so-called culture of secrecy at City Hall, presumably would be the candidate named on the write-in ballots, which accounted for 35 percent, or 121,278, of the votes cast Tuesday.
With 100 percent of the 843 precincts reporting, Murphy won 34 percent, or 117,075 votes, and County Supervisor Ron Roberts won 31 percent, or 105,663 votes.
County Registrar of Voters Sally McPherson said workers still needed to manually determine which candidate is named on the write-in ballots. Thousands of provisional ballots also need to be verified, as well as absentee ballots that were dropped off at polls Tuesday, she said.
"We'll work every day to get these finished as quickly as we can," she said. "It's very labor intensive. It's a manual process."
McPherson said she could not estimate what portion of write-in ballots counted so far had Frye's name.
It may take until Nov. 30 to declare a winner if the race is tight, she said. The inauguration is Dec. 6.
Frye, a surf-shop owner who entered politics as an environmental activist, started her write-in bid only five weeks before the election.
Until announcing her candidacy, the race had been a rematch of the 2000 contest between Murphy and Roberts.
But a deepening scandal surrounding the city's underfunded pension plan dominated the campaign. The U.S. Securities and Exchange Commission and Justice Department are investigating San Diego's financial practices amid questions over whether city officials hid bad news from investors and taxpayers.
Frye, 52, was the lone dissenter in a 2002 council vote to enhance retirement benefits – one that Murphy said he regretted.
The race was nonpartisan, though Murphy and Roberts are Republican. Frye is a Democrat. School

Candidate Takes San Diego by Storm
Steve Lopez:, Los Angeles Times, November 14, 2004
The female Che Guevara of local politics has already taped the "Today" show and "Good Morning America," appeared live on CNN and fielded a call from Hollywood about turning her story into a movie.
"It does seem to have all the right elements," Donna Frye tells me after slumping into an easy chair in her living room, her shaggy mutt at her feet.
So it would seem.
Surf shop owner becomes environmental crusader when her surfing legend husband gets horribly sick after catching some big ones on San Diego's notoriously polluted coast.
She wins election to City Council and becomes the lone voice of fiscal sanity while militantly anti-tax San Diego sinks into Enron-style collapse.
She jumps into the mayor's race at the last minute as a write-in candidate, inspiring a populist uprising in a traditionally conservative city.
The only problem is that the movie has no ending yet. Frye is in the lead, but officials are still counting votes from the Nov. 2 election, and it could take weeks to get through 147,000 write-in ballots and an additional 110,000 absentee and provisional ballots.
Then there's a sour-grapes lawsuit to sort through, filed by a business attorney who wants Frye's candidacy thrown out, followed by a runoff between the other two candidates.
Meanwhile, the city is abuzz. I visited a beach at dusk, and the first three surfers out of the water were Frye backers who hang on the daily vote updates.
"San Diego has been run by developers and the building industry for so many years," said surfer Suzanne Michael, a University of San Diego professor of environmental law.
Michael said that when the power brokers meet behind closed doors, she can always count on Frye to bang the door down on behalf of the environment and the little guy.
Adding to the drama is the fact that voters approved a measure granting broad new powers to the next mayor. It was sponsored by what's left of that Old Boys Network, and UC San Diego professor Steve Erie said the boys never imagined they might be "handing over the keys to the kingdom" to a maverick surfer chick.
"The San Diego establishment has certainly hoisted itself on its own petard," said San Diego resident Mike Davis, the renowned cage-rattling author.
Naturally, more traditional San Diegans are horrified.
"If I wanted to live in Berkeley, I would have moved there years ago," La Jolla's Joe Timko wrote in a letter to the San Diego Union-Tribune, questioning whether a surf shop owner had the skills to manage a major burg. "What a disaster this would be for our fine city."
This ignores one small point:
The people running the city can't run the city.
That's why San Diego appeared on the brink of bankruptcy amid a federal investigation into mismanagement of the shrinking employee pension fund. It was Frye who saw trouble coming and cast a lone vote against shorting the fund.
"People need to start hearing the truth," she said.
When you're talking about safety and environmental protection, you can't always do it on the cheap, as she sees it. This is the city that let the lease run out on its only firefighting helicopter just before the Cedar and Paradise blazes killed 16 people and destroyed 3,000 houses.
There might be more money in the till, Frye said, if downtown power brokers weren't always bellied up to the corporate welfare trough. She's sick and tired of watching city officials bend over backward for the owners of the Chargers and Padres, in particular.
"People have always underestimated her," said Skip Frye, who shapes surfboards for a living at the shop he and his wife own. "She does her homework more than anyone. When she went up against the city on water quality, I saw her take a correspondence class in sewage treatment, and she got an A."
It was about 10 years ago that Skip felt sick after surfing, and Donna Frye began educating herself on lax water quality controls. Convinced that Skip had been exposed to a viral pathogen, which still troubles him, she began shaking a fist at City Hall and the state Capitol. Frye helped draft the legislation that now requires water quality monitoring along the entire coast.
"Her story has been used as an inspiration for coastal water quality groups nationally," said Mark Gold of Heal the Bay in Santa Monica.
San Diego's water quality has improved dramatically, says Bruce Reznick of San Diego Baykeeper, but the city still has a long way to go. San Diego pumps about 169 million gallons of partially treated sewage into the ocean daily. It's the largest U.S. city with a waiver from the federal Clean Water Act.
City officials have long resisted upgrading the treatment facility, believing it's better to have residents and tourists swim in dung than pay to protect the very asset that draws them in the first place.
Is it any wonder Donna Frye has taken San Diego by storm?
"I want to save the city from itself, open up government for the good of the people and have some fun doing it," Frye said. "San Diego needs to be turned on its head."
She seems to have accomplished that, whether she wins or loses in the final tally.
But she isn't going to lose, she says, still slumped in the easy chair with her dog at her feet.
Diogenes, she calls him, in honor of the character who wandered Athens in search of an honest man.

San Diego Deeply Split as Write-In Saga Drags On
By Tony Perry, Los Angeles Times, Times Staff Writer, November 13, 2004
SAN DIEGO — Now is the season of discontent among activists, politicians and City Hall watchers.
The tallying of votes from last week's mayoral election continues amid lawsuits aimed at blocking write-in candidate Councilwoman Donna Frye from defeating incumbent Dick Murphy.
The city's labor unions are crying foul. Unionists accuse the establishment of attempting to steal the election from Frye, a labor-friendly Democrat and co-owner, with her surfer husband, of a surf shop.
On the other hand, business leaders are in various stages of dread over the prospect of Frye becoming mayor. She could become the first "strong mayor" in city history, thanks to the apparent passage of a ballot measure boosting the office's authority.
"The city seems to be split into camps of people who are mad as hell and aren't going to take it anymore," said lawyer Michael McDade, who was chief of staff to one San Diego mayor — Roger Hedgecock — and a kitchen-cabinet member for another — Pete Wilson.
A neutral in this mayoral campaign, McDade has a suggestion for all sides. "Parents should take a cue from their kids: Take a timeout until they can start acting rationally, not emotionally."
That might not occur soon.
Labor sees the biggest prize in local politics — mayor of California's second-largest city — slipping away. Business leaders are worried about having a powerful enemy, with new powers to veto actions by the City Council and hire and fire top administrators.
George Mitrovich, president of the City Club of San Diego, a public affairs forum, said the business community viewed Frye "as someone who opposes all the things they are trying to do for San Diego."
"This has become a really emotional issue," he added. "I don't think Donna Frye is helping by saying somebody is trying to steal the election."
In three years on the City Council, Frye has opposed a series of land development projects, often being the lone negative vote. She battled to keep the SeaWorld theme park from expanding and has talked about reducing public subsidies for downtown redevelopment projects.
At last count, Frye led Murphy by about 2,400 votes, with upward of 50,000 write-in, absentee and provisional ballots yet to be counted. But the count might be moot.
Two lawsuits have been filed to invalidate the election on grounds that Frye's write-in candidacy was illegal and should not have been permitted by City Clerk Charles Abdelnour. More suits are expected.
Governance by litigation is a San Diego tradition. Lawsuits delayed expansion of Qualcomm Stadium and the waterfront convention center, and construction of downtown's Petco Park, the Padres' new home.
At issue in the current situation is the awkward fact that the city charter does not permit write-in candidates in a general election, but a 1999 change in the municipal code does.
The first suit, filed by business lawyer John Howard, asserts that the city charter's ban on write-ins trumps the municipal code. He wants the registrar of voters to be blocked from further counting and a new election to be held between Murphy and county Supervisor Ron Roberts, with Frye excluded.
A retired jurist from Imperial County has been assigned to the case after all 124 judges in the San Diego Superior Court were recused by the presiding judge. Murphy is a former judge. A hearing may be held next week.
Talk of the lawsuits has dominated the city's radio talk shows. At a rally outside City Hall, labor union members supporting Frye held signs demanding, "Count the Vote."
The Howard lawsuit "isn't just against me; it's against all of you," Frye told the cheering crowd.
The League of Women Voters of San Diego staged a vigil outside the registrar of voters' office in opposition to the lawsuits.
"Any attempt to stop the process of counting all ballots is a flagrant violation of the fundamental citizens' right to vote," league President Kay Ragan said.
Howard said he had received several dozen e-mails and phone calls from people who supported his lawsuit, along with two dozen from people angry at him. Some were obscene, he said.
"If it matters, I feel strongly supported by people whom I respect, and scorned frankly by people I don't give a damn about," Howard said.
Despite San Diego's history as a city staunchly opposed to organized labor, unions have gained some political power in recent years.
All eight members of the City Council have enjoyed support from one or more unions. In some races, labor support is thought to have been crucial.
City law prohibits donations from labor unions — or business groups — to City Council campaigns.
But unions have made smart use of so-called independent committees to buy lawn signs, television advertising and bumper stickers supporting candidates they favor.
Jerry Butkiewicz, secretary-treasurer of the San Diego-Imperial Counties Labor Council, which endorsed Frye, said the lawsuits aimed at invalidating the election "are nothing but legal garbage."
"What they're trying to do is disenfranchise 150,000 people who voted for Donna," Butkiewicz said. "They don't care who the people want. I think it's a disgrace."
The Frye phenomenon began in mid-September after weeks in which it seemed that each day brought more bad news about the city's $2-billion pension deficit.
City consultants issued a scathing report on mismanagement by top administrators. Wall Street financial firms lowered the city's credit rating. The dirtiest word of all began to be openly discussed as an option for city government: bankruptcy.
Frye saw her opening, and took it. The city clerk certified her as an official write-in candidate with five weeks remaining in the yawner of a campaign between Murphy and Roberts, two Republicans.
Frye had voted against the proposal to under-fund the pension plan. She had also frequently criticized the council for discussing issues behind closed doors.
With support from labor and the environmental movement, her unlikely candidacy caught fire. Democrats have a 39% to 34% edge over Republicans in voter registration in the city.
"The timing was perfect for someone like Donna to step in and fill the void," said Councilwoman Toni Atkins, the only council member to endorse Frye.
On the council, Frye has been on the losing end of a passel of 7-1 and 8-1 votes. (The council has nine seats, but one was left vacant by Councilman Charles Lewis' death in August and has not yet been filled.) A common sight is Frye's continuing to ask questions of city staff members long after other council members are prepared to vote.
"She doesn't play the game," political consultant John Dadian said. "She won't be bulldozed into doing something she's uncomfortable with."
For months, San Diego civic boosters have felt battered by coverage in national newspapers and on network television about the city's financial problems. Now the media have moved on to the "surfer chick" who could be the next mayor.
"We are seeing the headlines change from bad to good, and you gotta love that," Frye said. "It's good for tourism. Some tourists may want to go surfing and buy surfboards."
But some people use other surfing references to describe the latest controversy's impact on San Diego's reputation.
"It's a wipeout," said Cynthia Vicknair, a political consultant.

Tension builds: Lawyers take over race for mayor's office, Frye calls lawsuit 'outrageous'
By SCOTT LEWIS, November 9, 2004
Already battered by months of corruption scandals, talk of bankruptcy and bitterly competing campaigns, San Diego has plunged into a new political crisis that leaves uncertain who might be leading the city's government over the next four years.
City Councilwoman Donna Frye greeted hundreds of chanting supporters outside of City Hall Tuesday to vociferously denounce a lawsuit that had been filed to challenge the legality of her bid for mayor.
The first judge to find himself assigned to the case -- Superior Court Justice Charles Wickersham -- recused himself.
And Tuesday more than 120,000 votes -- many of them cast in the city of San Diego -- remained uncounted. The Registrar of Voters was methodically slogging through thousands of provisional and absentee ballots that could determine the outcome of both the mayor's race and the hotly contested race for city attorney.
Frye's demonstration provided a glimpse into the kind of voter angst that might greet a decision to disregard all of the more than 140,000 write-in votes cast in support of her spontaneous bid for mayor.
The lawsuit that seeks to do just that also demands that a new runoff mayoral election be held that would not include Frye as a candidate.
Frye, who Tuesday still maintained a razor-thin lead over incumbent Mayor Dick Murphy in the ongoing vote count, said the legal maneuvering taking place now was "outrageous."
"They don't like the fact that they are losing control," Frye said to the crowd outside City Hall. "Clearly the thought of an open government just hit a nerve with somebody."
Murphy, in a press conference, said he also opposed the lawsuit. But the mayor, whose term runs out in early December, would not take a position on the question of whether or not a legal election took place.
"You'd have to go to (City Attorney) Casey Gwinn's press conference to ask that question," Murphy said facetiously, as Gwinn had no such press appearance planned.
Gwinn, in fact, is absorbing much of the blame for the turmoil injected into City Hall after observers began to take note of an apparent discrepancy between the city's policies -- which allow a write-in candidates in all elections -- and the city's governing constitution, which appears to prohibit write-in campaigns for final runoff elections.
Plaintiffs in the first of many rumored legal challenges to the election claim that because of a 2002 California Supreme Court decision, the City Charter has the authority to prohibit write-in candidates.
"The charter is exquisitely clear on the issue," said John Howard, of J.W. Howard/Attorneys, who filed the lawsuit.
The city's charter makes clear that "all elective officers of the city shall be nominated at the municipal primary election." If no candidate receives more than 50 percent of the vote in the primary, the charter says the city must hold a runoff election in which the two candidates who placed highest in the primary are the "only candidates for such office."
Frye disregarded any claim that the lawsuit was based on real legal concerns.
"The fact that this is being challenged has nothing to do with the law," she said. "If the vote count hadn't come out the way it did, you wouldn't see a lawsuit filed."
She said County Supervisor Ron Roberts, who has apparently come in third in the vote count for mayor, should denounce the lawsuit. Howard, the plaintiff's attorney, financially supported Roberts' bid for mayor.
Roberts said he couldn't do anything to stop the litigation from going forward.
"If Donna thinks that we've arranged for these legal challenges or can call them off, she's mistaken," Roberts said.

Suit Aimed at Blocking San Diego Candidate
By Tony Perry, Los Angeles Times, November 9, 2004
SAN DIEGO § As the laborious work of counting ballots from last week's mayoral election continued Monday, one of the city's best-known business lawyers filed suit to block write-in candidate Councilwoman Donna Frye from becoming mayor.
The lawsuit filed in San Diego County Superior Court by John Howard asserts that the city clerk blundered when he allowed Frye to register as a write-in candidate just five weeks before the election between Mayor Dick Murphy and county Supervisor Ron Roberts.
Howard, a Roberts supporter, asserts that the City Charter does not authorize write-in candidates in general elections and that its ban on such candidacies trumps a Municipal Code section that allows them.
"The Charter," Howard said, "is like the Constitution. It always trumps legislation."
City Atty. Casey Gwinn, who declined to take the matter to court after Frye's candidacy was certified by City Clerk Chuck Abdelnour, said the issue "is a very close call." He said he supports Abdelnour.
In preliminary counting last week, Frye led Murphy by 3,800 votes, but that lead does not include 110,000 provisional and absentee ballots that have yet to be counted.
Also, it presumes that all 135,000 write-in ballots were for Frye and were valid.
Workers at the county Registrar of Voters are examining each write-in ballot to determine whether it is valid, with a correct spelling and the appropriate box inked in. So far, 30,000 have been found to be valid and in favor of Frye.
But no figures have been released indicating how many write-in ballots were for other candidates or were done in an invalid manner. The result is that it is unknown whether Frye's preliminary 3,800-vote lead has changed.
Registrar of Voters Sally McPherson has said it may take until Nov. 30 before she can declare a winner. The new mayor is set to take office in early December.
Howard's lawsuit came just hours after Frye held a news conference outside City Hall to blast "postelection shenanigans," her phrase to describe potential lawsuits seeking to keep her from becoming mayor.
"Let's call it for what it is," Frye said. "This has nothing to do with the law. This is sour grapes."
Frye called on Murphy and Roberts to disavow the idea of a lawsuit.
"I'm calling on them to act like gentlemen," she said.
Later, each sought to distance himself from the lawsuit. But neither ruled out a court challenge.
"I think we all want to know that a legal election was held," Roberts said.
Murphy, a former Superior Court judge, told reporters, "In my opinion, it would be best for everyone to complete the vote count before considering legal action."
Howard said he did not consult with Roberts or any of his clients before filing the suit. He said he was too busy before the election and, like many people in San Diego, was surprised at the strength of Frye's candidacy.
The lawsuit asks that a judge order the vote counting halted and a runoff election be held between Murphy and Roberts, without Frye.
"I think the city fathers were right in saying that a runoff should be between two candidates, with the winner being the one who receives a majority of votes," he said. "That provides some sort of mandate for the winner."
Even if Frye wins, she will receive far less than a majority of votes.
Frye, 52, a first-term City Council member, entered the race as the city's $2-billion pension deficit became the dominant issue. She was the only council member to vote against an under-funding scheme that has since been criticized as "eccentric" by outside lawyers hired by the city.
Frye was helped by labor unions and environmental groups. She is a Democrat; Murphy and Roberts are Republicans.
Frye's potential victory has caused concern among business leaders because of her opposition to large-scale land development projects and for any public subsidies to help the San Diego Chargers build a new stadium. Without a new stadium, the Chargers have threatened to leave San Diego.
Carl Luna, political science professor at San Diego's Mesa College, said he was not surprised that Frye's strength has brought a legal challenge.
"This is the morning after," Luna said. "The city had its love affair with Donna, but now two-thirds of the people, who didn't vote for her, are having second thoughts."
Howard said his client is one of his law partners. Howard has a long history of involvement in local political matters and was part of a committee that fashioned a "strong-mayor" measure for the ballot, which, so far, is leading.

Mayoral election in San Diego has some legal issues
By Philip J. LaVelle, Union Tribune, November 5, 2004
City Attorney Casey Gwinn says he hopes the San Diego mayor's race is decided by voters, not lawyers.
]"It's my hope that everyone involved will respect the decision of the voters, once we know the outcome of the election," Gwinn said yesterday.
"I hope San Diego doesn't end up in a six-month legal battle over who won the election, but that's not my decision to make."
Election workers continued to tally votes yesterday in the tight race.
At press time, write-ins held a slender lead, at 35 percent to 34 percent for Mayor Dick Murphy and nearly 31 percent for county Supervisor Ron Roberts, who conceded Wednesday.
The vast bulk of write-ins are expected to go to Councilwoman Donna Frye, who entered the race about five weeks before Election Day.
There has been talk of litigation challenging the legitimacy of allowing a write-in candidate.
At issue: conflicts between the City Charter, which says general elections shall pit the two finishers of the primary against each other, and the Municipal Code, which allows write-ins.
City Clerk Chuck Abdelnour certified Frye's candidacy, and nobody filed a formal challenge.
Gwinn called it "a very close call," but said he believes the courts would be reluctant to overturn election results.
"The bottom line is that Donna Frye made a decision to run, the city clerk made a decision to authorize her write-in candidacy, and many voters decided to vote for her," he said.
"I believe that once the outcome of the election is known, the voters' decision should be honored. And if she wins, she should become the mayor. If she doesn't receive the largest number of votes, then whoever does should become the mayor."
The law is unsettled.
Ruling in a 1985 San Diego case, the California Supreme Court said write-in candidacies are legitimate.
But two years ago in a San Francisco case, the state high court said write-ins are not legitimate.
Unlike San Diego, San Francisco's charter and Municipal Code both ban write-ins, according to Gwinn.
"We have a much more complicated situation," he said.
In San Diego, the Municipal Code was altered in 1999 to strengthen rights of write-in candidates, he said.
He added: "There's been a pattern and practice of allowing write-in candidates in the city of San Diego for years, since the 1985 decision."
Another legal challenge may come over whether the winner must receive a majority of votes, not the plurality Frye or Murphy will receive.
Also, a Frye lawyer has said he will sue if the county rejects Frye write-ins that don't have ovals filled in next to the name. The ovals are required for the computer to scan and record the votes on ballots.
A lawsuit on that issue would be aimed at the county.
Gwinn's successor would defend the city clerk against lawsuits challenging the election's legitimacy. He will be replaced by Leslie Devaney or Michael Aguirre. Election workers were still tallying votes in their tight contest.

Proponents of Proposition F contemplate Frye, strong mayor
By SCOTT LEWIS, The Daily Transcript, November 3, 2004
Some prominent San Diegans spent much of Wednesday contemplating a fascinating picture of city government in which City Councilwoman Donna Frye is mayor just before a new charter amendment transforms that office into a much more powerful entity.
The picture is far from becoming an official reality, as the tabulation of absentee and provisional ballots continue over the next few days. But Frye's strong showing as a write-in candidate in what became a three-person mayoral race captured the attention of many who supported the "strong mayor" initiative.
A write-in candidate, presumably Frye, had received more than 35 percent of the Nov. 2 vote, stretching her lead over incumbent Mayor Dick Murphy to 4,203 votes as of Wednesday at 5 p.m. The county registrar still must officially validate the write-in votes as representing "reasonable facsimiles" of Frye's name. As of the latest count, voters appear to have approved the strong mayor initiative, or Proposition F as it was known, with more than 51 percent of their votes.
Some business leaders, and even Frye, recognized the irony that she may become the mayor just more than a year before the city embarks on the five-year experiment in which the mayor becomes the city's chief executive.
The outspoken councilwoman, known for being on the small end of many 8-1 votes, had been a vocal opponent of the strong-mayor reform.
The mayor under the current system is merely one member of nine on the City Council. Mayor Murphy shepherded the Proposition F through the City Council approval process over the summer.
Many supporters of the initiative, who received vital financial backing from local business leaders, said they would have lobbied for the reform regardless of who became mayor in the future.
Bill Geppert, the general manager of Cox Communications in San Diego, helped lead the effort to pass the strong mayor reform.
"It's not about the person who is in office, our approach has been that it's about the structure of the government. It's always been about the structure, not about the people who might be mayor," Geppert said.
Geppert said residents supported Proposition F as part of a larger push for change.
"Clearly the voters believe there is some need for change," Geppert said.
Chris Niemeyer, the executive director of the Lincoln Club, echoed Geppert's assessment, although he said some people might have woken up Wednesday startled by the previous day's developments.
"The strong-mayor system will allow whoever is in that office to have a clarity of leadership to effect change and the tools in place to allow them to do it," Niemeyer said.
Frye has always been dismissive of suggestions that the mayor's office can't influence the city sufficiently now.
Wednesday Frye said she, if confirmed as the next mayor, will utilize the next year to iron out the kinks in what she called a "sloppy" amendment to the charter.
"It's going to take at least a year to figure out what needs to be done," she said.
While County Supervisor Ron Roberts admitted Wednesday that he had no optimism further vote counting would show him competitive in the race, Mayor Murphy was not ready to concede anything.
His supporters, including the Lincoln Club and others, said they would wait until further confirmation as well.
Mitch Mitchell, vice president of public policy at the San Diego Regional Chamber of Commerce, however, said his organization had come to the conclusion that Frye was the winner.
"We at the chamber look forward to working with Donna," he said.
Murphy, for his part, said he was proud of helping to get Proposition F and a new form of government into law.
"It's another little legacy we've left for San Diego," he said.

Spotlight on open government, Frye contends Murphy, Roberts not committed
By Philip J. LaVelle, Union Tribune, October 23, 2004
Mayor Dick Murphy (left) addressed the audience yesterday at a debate sponsored by the Catfish Club and the City Club of San Diego as rivals Ron Roberts (center) and Donna Frye waited their turn.
Mayoral candidate Donna Frye went on the offensive yesterday, suggesting to a debate audience that Mayor Dick Murphy and county Supervisor Ron Roberts are not committed to open government or telling the public the truth.
"I want you to look and ask yourselves the question: Who will tell us the truth? Who has actually done something to try and push open the doors of City Hall?" Frye said.
The city councilwoman made her remarks to an overflow crowd in a hall at KGTV studios, at a debate sponsored by the Catfish Club and the City Club of San Diego.
Earlier in the day, Roberts held a news conference outside a La Jolla luxury auto dealership to accuse Murphy and Frye of propagating a "Millionaire's Club" by allegedly not voting to scrap a benefit that will hand some top city executives a lucrative lump sum.
"Dick Murphy and Donna Frye both voted for this program," Roberts said, referring to a program called DROP that allows city workers to have retirement pay deposited into a special account in their last five years on the job.
Roberts stood outside Symbolic Motor Car Co., the grille of a massive Rolls-Royce Phantom – sticker price $332,750 – jutting out of the showroom as a prop.
Later, Murphy blasted Roberts' assertions, chalking them up to "desperation."
"Ron Roberts will say anything to get elected mayor and he is grasping at straws to accuse Donna and me of voting to implement the DROP program," Murphy said in an interview. "It's not true."
Murphy has also called Roberts a hypocrite for criticizing the city's fiscal situation while San Diego County has a $1.2 billion pension deficit and owes more than $800,000 million in outstanding pension bonds. The county system was plunged into deficit after the Board of Supervisors voted in 2002 to boost benefits by 50 percent at a cost of $1.1 billion.
In debates earlier in the week, Roberts accused Murphy and Frye of voting for the program in June 2002 and failing to scrap it in annual salary negotiations.
The city adopted the program on a three-year trial basis in 1997. It was made permanent in 2000. Murphy and Frye both said the 2002 vote was a technical matter involving the way DROP benefits are distributed.
Murphy now calls for ending DROP for future hires, but said it cannot be repealed for existing workers because it is a vested benefit.
At the debate, Frye took on Roberts, pointing to her record of strongly criticizing pension underfunding and accusing him of failing while on the City Council to stop pension abuses.
The council began to intentionally underfund the pension after a vote approving the practice in 1996. Roberts was on the council from 1987 to 1994, while another form of underfunding was underway.
According to the law firm Vinson & Elkins, representing the city in talks with the Securities and Exchange Commission, the city first began misusing pension funds in 1980 by distributing a portion of system earnings instead of plowing them back into the trust.
"I am unaware of Mr. Roberts ever voting . . . against any item that would in any way, shape or form have stopped the practice of underfunding that began in 1980," Frye said.
Roberts did not address Frye's specific allegation but noted that the pension system had a funded ratio of more than 100 percent in 2000. Murphy defeated Roberts for mayor that year, and Frye was elected in 2001.
In an interview, Frye took umbrage at Roberts' assertion that she bears some blame in the pension crisis, which includes a $1.17 billion deficit and has sparked ratings downgrades and investigations by the SEC and Justice Department.
Frye noted that she became the only champion at the City Council of pension board whistle-blower Diann Shipione and began asking for an audit of the pension system in April 2003.
The candidates also sparred on issues ranging from affordable housing to urban sprawl.
Frye said she voted for an affordable-housing measure but said it is flawed because it allows builders to pay a fee rather than build units. She said she has had talks with building industry leaders about ending the practice.
Murphy touted construction of 3,000 affordable-housing units, with 2,000 more in the pipeline, and said affordable housing is now a top priority. "The city of San Diego is doing a better job than anyone else in the county. I would ask Mr. Roberts to tell us how many units of affordable housing the county has built," he said.
Roberts said the county will unveil a $100 million housing program in the coming weeks.

Mayor's race hopeful Frye outlines her plan for S.D.
By Philip J. LaVelle,, Union Tribune, October 10, 2004 NANCEE E. LEWIS
Flanked by supporters, Councilwoman Donna Frye officially started her write-in campaign for San Diego mayor yesterday at Mission Bay Park.
With Mission Bay as a backdrop, Councilwoman Donna Frye formally kicked off her write-in campaign for San Diego mayor yesterday, sketching for hundreds of supporters the broad outlines of a populist agenda anchored by a pledge for openness at City Hall.
"Today, we have a once-in-a-lifetime opportunity to take back our city, and to restore the public trust and our city's good name," Frye told about 300 cheering supporters gathered near the water's edge.
Frye announced that she has qualified as a write-in candidate – securing thousands more than the 200 voter signatures required by law – and vowed if elected to "never, ever forget that the mayor is a public servant who works for all of you."
She promised to upset the conventional wisdom that a write-in campaign is doomed and said her first act as mayor would be to push to make open government a city law.
"The solutions to our city's problems begin with an open government," she said, adding that the city's problems stem from "the failure of the bureaucrats to tell the public the truth and put the public interest first."
Councilwoman and mayoral candidate Donna Frye was touched by the support of the roughly 300 people who showed up at Mission Bay Park yesterday.
Frye presented general views on issues from city finances to social issues, without extensive detail.
She said tackling the city's pension crisis is a top priority.
The pension issue has become the central theme of the mayoral race, which until recently matched two Republicans – Mayor Dick Murphy and county Supervisor Ron Roberts – in a rematch of the 2000 contest.
The race is technically nonpartisan.
Frye, a Democrat, vowed to fully fund the pension system and close a $1.17 billion deficit within three years, not the 15 proposed under Proposition G, a Nov. 2 ballot measure she backed along with Murphy and the rest of the council in July.
"We can't wait 15 years to do something about our retirement system," Frye said. "We have to act now, to stop the drift and eliminate the excesses that have reduced our city's contributions to the pension plan while increasing benefits."
The pension-system deficit is blamed on years of underfunding, benefit increases and investment losses.
Frye did not indicate how she would close the pension gap so quickly, but said she wants to create a "credible, independent finance team" to include an actuary to "help identify the least painful way to bring the pension plan into balance within three years."
Frye also called for "full, honest and complete" disclosure of the city's financial obligations, in documents understandable to the public. "If you can't explain it in one or two pages . . . it's probably because you're trying to hide something," she said.
She praised pension trustee Diann Shipione, whose warnings against underfunding the pension fell on deaf ears at City Hall. "Rather than ignoring and trying to demean people like Diann . . . we should thank them for their willingness to participate," she said.
Frye said she would hold hearings on the more than $600 million in unmet city needs and investigate the practice of money transfers from the water and sewer funds to the general fund, which pays for day-to-day city services.
She said it is time to end professional sports subsidies, signaling a hard line on the Chargers' push for a new football stadium, and said growth and development must not outstrip the city's ability to provide basic services to existing neighborhoods.
Frye also said she would push for a renewable-energy policy, a "livable wage" – signaling support for a law requiring city contractors to pay higher wages – and empowering neighborhoods to determine what constitutes "significant environmental impacts" from development projects.
Without giving details, Frye said she would commit the city to establishing affordable housing, combating homelessness and improving accessibility for disabled people and senior citizens.
Frye's campaign gained momentum last week, with the San Diego-Imperial Counties Labor Council voting, as widely expected, to back her while dumping its endorsement of Murphy.
Union support is important in local contests because it paves the way for independent campaign expenditures while providing a large volunteer corps.
Murphy still has endorsements from the Municipal Employees Association, City Hall's largest union, and from the firefighters union.
After the groundbreaking yesterday for a new Serra Mesa-Kearny Mesa library – which was attended by Frye – Murphy disputed her contention that City Hall is cloaked in secrecy. He pointed to the Pension Reform Committee, which recently recommended massive payments to the pension system, and a report by the law firm of Vinson & Elkins that found years of financial-reporting irregularities at City Hall.
"We've laid out all of the city's dirty laundry on the pension system to public inspection, then came up with recommendations to solve it," Murphy told reporters. "That's hardly secrecy, when you are so open and honest about the pension plan."
Murphy said losing the labor council's endorsement was not a surprise. Roberts called the move critical.
"I'm glad to see Donna in the race because I think it's a major blow to Dick Murphy," he said. "She's now taken away his major labor backing."

Frye Addles Fat-Cat Moochers
By Don Bauder, San Diego Reader, October 14, 2004
Some in the national media say that write-in mayoral candidate Donna Frye "came out of nowhere." Wrong. She came out of the perfect place: the sewers. Long before she was elected to the city council, she was an environmental activist who was well informed on sewers, storm drains, pollution runoff, clean water, and infrastructural matters of all kinds.
Now, Frye leads in some early polls because San Diego voters realize that politicians must start doing what they are paid to do: keep the streets, sewers, storm drains, water systems, safety equipment, and libraries in working order.
Frye ran for office only because she was frustrated at councilmembers' lack of interest in -- and refusal to bone up on -- such topics, which she considered a municipal politician's job.
Once on the council, she refused to sing along with city government's theme song, "Smoke Gets in Your Eyes." When confronted with deliberately obfuscated documents shoved in front of city council, she demanded that bureaucrats write plain English. She wouldn't vote for an issue unless she understood it -- one reason she was often the lone "nay" in an 8-1 vote. Critically for her career, she was the lone nay in the council's disastrous November 2002 vote to continue underfunding the pension program.
She has several core constituencies: Democrats (who narrowly outnumber Republicans in the city), organized labor, environmentalists, slow- and no-growthers, fiscal conservatives, antiestablishment activists of all kinds, and people who believe that government's job is to provide basic services, not monuments. As city services continue to deteriorate, Frye's potential vote count rises.
Her vote against the pension underfunding will help her the most, but her persistence on a sewer issue helped San Diegans the most. For many months, she insisted that the city come forward with results of a state-mandated cost-of-service study, which would show whether residents and large users were paying sewer fees proportional to their usage. "The city held it up for a long time. When it came out, it showed that residential users were essentially subsidizing the larger users," such as businesses, she says. That's why the business-cozy government was reluctant to release the results. The people then got a reduction, because if the city had not acted, the state would have withheld $266 million in revolving funds.
Because so many in Frye's constituency are politically savvy, and because voters will have writing instruments in their hands, she might be able to mount the biggest hurdle: getting people to understand how to fill in the third mayoral bubble and print her name on the adjoining line. Her biggest problem is time: absentee ballots began going out last week.
In interviews, Democrats, Republicans, and Libertarians agree that she can win, although it could be tough. No matter what happens, the biggest losers are likely to be the corporate-welfare mendicants. The downtown clique may well caucus secretly and jettison either Mayor Dick Murphy or challenger Ron Roberts and bankroll one or the other to stop Frye.
"I think it is adios to the corporate-welfare crowd," says Democrat Steve Erie, UCSD professor of political science. If Frye shows strength, "It will be harder for the Chargers to get free city land in Mission Valley, although with the Padres, the fox is already in the chicken coop. Essential public services are egregiously underfunded. We need to reorder our priorities; Donna is willing to do that."
"She will get fiscally conservative voters," says Republican Scott Barnett, former head of the San Diego County Taxpayers Association. "She will not be afraid to air the dirty laundry, open the process, and tell the truth." He, too, agrees that a strong Frye showing will hurt the corporate-welfare crowd. However, if her vote percentage is in single digits, she will have hurt herself, he says.
"She is for transparency; she doesn't like shell games," says Republican Carl DeMaio, head of the Performance Institute, which has made many expense-slashing recommendations that have been ignored by city hall. His organization wants to streamline city government; put a lid on spending increases; reduce labor and pension costs; set up a system in which outside bids compete with internal bids on a project; reduce corporate welfare; and have an independent auditor determine how much money is being diverted from sewer and water funds to the general fund. Frye has pledged to work with him.
"She was our champion in the audit of water and sewer funds," says DeMaio. "She would go after corporate welfare. We welcome her into the race. The entrance of Donna Frye reminds me of the forces that drove the recall [of former governor Gray Davis]."
"The people who say they will vote for Murphy are not for Murphy, but against Roberts. The people for Roberts say he is arrogant, unpleasant, impossible, but Murphy is incompetent," says Democrat Jim Mills, former president pro tem of the California Senate. He believes Frye can win if people can be educated on the write-in technique. She should oppose secrecy, corruption, and corporate welfare, he says. The fat salaries and perks of such groups as the Convention & Visitors Bureau and Regional Economic Development Corporation should be good targets, he says. Murphy's plan for a downtown library is a boondoggle. The money would be better spent on infrastructure, says Mills.
Democrat and former city councilmember Abbe Wolfsheimer-Stutz says, "People tell me, 'Finally, we have somebody to vote for.' " (Almost the exact words of Frye's slogan.) "Donna should concentrate on cleaning up city hall, getting rid of corporate welfare, not squandering taxpayers' money, getting rid of backroom deals, restoring fiscal conservatism."
"I haven't made up my mind on Donna. She has great positives and great negatives," says Libertarian Richard Rider. "On the positive side, she is the only one at city hall who knows how to say no. But on the negative side, I'm afraid that she might favor rent control and the living wage -- Berkeley-style legislation." (She doesn't favor rent control but believes companies getting city contracts should pay a living wage.)
Last week, the council voted to issue $600 million in pension-obligation bonds (three times what Murphy was talking about last summer) and also to toe the line against labor unions in upcoming contract negotiations. Once again, Frye was the sole opponent. The city shouldn't issue bonds until its long-delayed 2003 audit is out, she said. And it can't issue bonds until the criminal and civil investigations into inaccurate bond prospectuses are complete. Critics charge that in opposing the hard line against labor, she is pandering to labor's votes, although the major unions representing city employees are backing her opponents.
Says Republican Bruce Henderson, former councilmember. "Donna's vote was pro-taxpayer," he says. San Diego got into its fiscal fix by pandering to special interests. Underfunding the pension system was one of several methods to balance budgets bloated by corporate welfare. Labor can't be blamed for asking for more pay in exchange for underfunding. Besides, the egregious pension abuses -- the million-dollar lump sums in addition to six-figure monthly payments -- went to top city officials who were in the establishment's pocket. "Anybody who says all our problems were caused only by workers is playing politics."

Business interests fear wide-open mayor race
By Philip J. LaVelle and Ray Huard , STAFF WRITERS, April 9, 2003
Saying privately they fear the "instability" of a wide-open mayor's race, some local business interests have quietly joined a Draft Dick Murphy movement to persuade San Diego's mayor to reconsider his decision to drop his 2004 re-election bid.
The group – whose tactics are being managed by a registered City Hall lobbyist – is part of a broader effort, led by City Councilman Jim Madaffer, to assemble a collection of community leaders who will publicly urge Murphy to reconsider.
Craig Benedetto, the lobbyist, is organizing the group's activities, from formulating strategy to developing "message points" – a set of previously agreed-to public remarks – while striving to remain in the background, for fear of generating public backlash.
Underlying the group's motivation is the spoken fear of a rough-and-tumble campaign season, as well as the unspoken fear that California's second-largest city could elect a mayor less friendly toward business than Murphy.
Members of this group include several key figures from the San Diego Regional Chamber of Commerce; the local head of Cox Cable, which has a city franchise; and the San Diego Economic Development Corp., which received a $1.4 million city subsidy this year.
Benedetto's lobbying clients include Anheuser-Busch, owner of SeaWorld; AT&T Wireless; and developers, according to documents kept at the City Clerk's Office.
Madaffer and former Councilwoman Judy McCarty – longtime Murphy friends and backers – bristled at the notion that the activities of the business interests, including their strong desire to play behind the scenes, could create the appearance that special interests are driving the Draft Murphy effort.
"We went to them," said Madaffer, "and made it very clear – this is not going to be a business-led effort. This is a grass-roots citizens effort. You guys can be part of it, but no way it's going to be yours."
McCarty said the goal is to show Murphy that he has community support "so strong that it compels him to change his mind."
"The business community likes stability more than anything else," said McCarty, "and I think they were scared to death of a free-for-all in the next two years. I'll tell you what, they're not trying to hide their effort. Downplay, yes."
Madaffer and McCarty are promoting a Web site – www.draftmurphy.com.
Supporters, assembled by Madaffer and McCarty and the business group, are planning a news conference tomorrow at 9 a.m. outside City Hall to announce broad support for Murphy. They hope to have all members of the City Council there, as well as City Attorney Casey Gwinn.
All this has thrown San Diego's topsy-turvy mayor's race on its ear once again, with Murphy fueling political uncertainty yesterday by issuing less-than-definitive signals about his political plans.
It has also energized Murphy critics, including political consultant Larry Remer, who said he will launch his own Web site – www.getsomeonewhowantsthejob.com – with help from Jerry Butkiewicz, secretary-treasurer of the San Diego-Imperial Counties Labor Council.
"We need a mayor who wants to be mayor," said Remer, who said he has some clients who might run if Murphy doesn't. "We need a mayor who wants to do the job. That's the key."
Meantime, some leading potential candidates have been forced to cool their heels.
"I'm certainly reserving judgment until the mayor has reached closure on this," said Port Commissioner Peter Q. Davis. "I've asked him to give me a call when he has come to closure on this, and he hasn't given me a call yet."
Gwinn, who has sent letters to potential supporters, said he would drop a possible bid if Murphy changed his mind.
"I am a strong supporter of Dick Murphy and would never run against him," Gwinn said. "I am encouraging him to reconsider, as I know many others are. We've been evaluating the possibility of running, just like everybody else . . . but I remain very hopeful that Dick will reconsider."
Murphy's spokeswoman, Colleen Rudy, said: "The mayor has been surprised by the overwhelming number of requests to reconsider his decision not to run for re-election.
"The mayor only would reconsider his decision if he became convinced that it was in the best interests of the city," Rudy added. "At this time the mayor has not changed his mind, but he is listening and talking with community members, and if he changes his mind, we will let you know."
Murphy announced his re-election bid March 14. He dropped out two weeks later, saying he disliked campaign politics – he had yet to draw an opponent – and felt he could better concentrate on city business if freed of the demands of campaigning.
Part of the strategy of the business group is to convince Murphy that they can undertake much of the grunt work of campaigning, such as fund-raising, thus minimizing his campaign activities.
Benedetto said he is not being paid and was motivated to work on the Draft Murphy effort by average citizens. "I've been at several different functions where there's been average everyday San Diegans wondering why San Diego Mayor Dick Murphy isn't running for re-election," he said.