San Diego Mayor Widens Lead

SAN DIEGO —  Mayor Dick Murphy widened his lead Thursday over write-in candidate Councilwoman Donna Frye as a judge set a hearing for Monday to determine if “empty oval” ballots favoring Frye should be counted.

Murphy led Frye by 3,800 votes, with about 13,500 votes yet to be tallied, according to the county registrar of voters.

Meanwhile, Presiding Judge John Einhorn recused all 124 judges of the San Diego County Superior Court from hearing a lawsuit filed by the League of Women Voters demanding that write-in ballots be counted even if voters did not darken an oval to the left of their candidate’s name.

Judge Charles Jones, a retired jurist from Imperial County, will hear the lawsuit.

It is unknown how many empty-oval ballots for Frye exist, but her supporters believe several thousand votes were not counted because voters did not realize they needed to darken the oval in addition to writing the candidate’s name.

John Nienstedt, a pollster from the San Diego-based firm Competitive Edge Research, said an analysis of the vote-counting patterns had convinced him that Murphy’s lead was insurmountable under the rules, which do not allow write-in votes next to empty ovals to be tallied.

“Donna Frye will not be the top vote-getter,” Nienstedt said. “The oval ballots are her last chance.”

Sally McPherson, the county registrar, said state law forbade her from counting write-in ballots without darkened ovals.

But attorneys for the League of Women Voters say the votes should be counted because the intent of the voters was to support their write-in candidate.

Also, while state law requires the darkened ovals, city election law does not.

Both the Frye campaign and the registrar’s office stressed before the election that voters needed to fill in the ovals.

County workers hope to have the count completed by today or Saturday.

By law, McPherson has until Nov. 30 to certify a winner.

Judge Jones on Monday largely rejected a lawsuit aimed at invalidating Frye’s candidacy as illegal under the City Charter, which does permit such candidacies in runoff elections.

In turning down a request by business lawyer John Howard for a restraining order halting the vote count, Jones said the lawsuit should have been filed before the election.

Howard has moved to appeal Jones’ decision to the 4th District Court of Appeal. He said he planned to continue the lawsuit even if Murphy defeated Frye.

“This isn’t about Murphy,” he said. “It’s about a principle.”