Judge OKs Vote Count in San Diego

SAN DIEGO —  Declaring “let the people be heard,” a judge Monday refused to block the vote count in a disputed mayoral election that has gripped this city while garnering national attention for the unlikely leader -- a last-minute write-in candidate, Councilwoman Donna Frye.

With an estimated 30,000 provisional, write-in and absentee ballots yet to be counted, Frye, the owner of a surfboard shop, is clinging to a lead of just over 1,800 votes over incumbent Mayor Dick Murphy.

The court hearing, which was aired over three local television channels, was held as the city remains caught up in one of the most unusual mayoral elections in its history.

Frye, 52, a Democrat and wife of legendary surfer Skip Frye, entered the race as a write-in candidate only five weeks before election day.

The election and the long vote count have led to an emotional clash between business leaders and labor unionists. Business leaders see a potential enemy taking over City Hall, and labor sees an attempt to steal an election through the lawsuits that have been filed challenging Frye’s candidacy.

If elected, Frye would enjoy greater powers than any mayor in city history. Voters in this month’s election passed a business-backed “strong mayor” measure. Frye had opposed the measure as giving too much power to the mayor.

Although most City Hall observers considered Frye a colorful character and earnest advocate of environmental, slow- growth and beach issues, few gave her insurgent candidacy a chance in the race against Murphy and county Supervisor Ron Roberts, both of whom are Republicans with long experience in local government.

After Frye appeared to outpoll Murphy and Roberts, business lawyer John Howard filed a lawsuit challenging her candidacy as a violation of the City Charter. A second lawsuit challenges her candidacy in federal court.

Frye and her backers, including labor union members and environmentalists, have branded the lawsuits “sour grapes.”

Judge Charles Jones, a retired jurist from Imperial County who is hearing the case in San Diego County Superior Court, sided with Frye on Monday, ruling that Howard waited too long to file his lawsuit and should have mounted his challenge before election day.

“The plaintiffs have slept on their rights and have therefore waived them and lost them,” said Jones after an hourlong hearing.

After the ruling, Murphy said he was glad the vote-counting was not halted. He had opposed filing any lawsuit until after the county registrar of voters finished the count.

“I think we should let the voters decide who the next mayor will be,” Murphy said.

“We won,” Frye said. “I don’t think we’ve ever seen anything like this in the history of San Diego.”

Howard said he might appeal Jones’ ruling to the 4th District Court of Appeal. His suit had asked for the vote-counting to be halted and a runoff election ordered between Murphy and Roberts, without Frye.

But Jones rejected Howard’s legal argument that the City Charter, which does not allow write-in candidates in runoff elections, should trump the municipal code, which does allow such candidacies.

Jones said that the charter, adopted by voters in 1931, “is certainly a sanctified document, but I don’t think it’s a constitution.” He said that by changing the municipal code to allow write-ins, the council, in effect, amended the City Charter.

In gentle tones, Jones criticized the city attorney and city clerk for not recognizing the possible contradiction between the City Charter and the municipal code before the Nov. 2 election.

“To borrow a phrase from a song, all we heard was ‘the sound of silence,’ ” Jones said.

Jones said that ordering a new election would be costly, and “even worse, you [would] have to put up with another month of those TV commercials.”

Jones was given the case after the presiding judge of the San Diego County Superior Court recused all 124 judges on the local bench to avoid the appearance of favoritism toward Murphy, a former San Diego judge.

After declaring her candidacy in late September, Frye caught the attention of voters by claiming that Murphy and Roberts were “business as usual” and not capable of dealing with the city’s pension deficit and other problems.

Frye had declined to endorse either Murphy or Roberts, although both had sought her endorsement.

Her candidacy was also helped by the fact that for the first time in decades, San Diego voters marked ballots with ink pens, making write-ins easier.

On election night Frye’s lead approached 4,000 votes, but it has steadily declined as election workers count absentee and provisional ballots and check the validity of write-in votes.

Based on counting so far, Murphy loyalists say that if 2% or more of the write-in ballots prove to be invalid or cast for other candidates, he will overtake Frye.

Howard, a supporter of Roberts, filed his lawsuit on behalf of one of his law partners. His co-counsel was lawyer Michael Neil.

Former Superior Court Judge Larry Stirling filed a request to have intervenor status in the case.

Stirling, in court papers, said the best alternative is for the City Council to declare the position of mayor vacant and order a new election that could include Frye as a candidate.

Jones rejected that view.