San Diego Vote Count Defended

SAN DIEGO —  One voter wrote in mayoral candidate Donna Frye’s name followed by three exclamation points.

Another crossed out the name of her opponent, Mayor Dick Murphy, and wrote in Frye’s name.

A third voter scribbled “No,” next to Murphy’s name, and wrote Frye’s name.

None of those votes -- and many like them -- counted for Frye, Registrar of Voters Sally McPherson testified Tuesday, because voters failed to darken the accompanying oval as required by state law. The 5,551 un-bubbled ballots would have swung the November election in Frye’s favor.

McPherson’s testimony came on the second day of a trial in which Frye supporters are trying to show that the registrar treated their write-in votes differently from ballots cast for Murphy, the certified winner by 2,108 votes. They want Superior Court Judge H. Michael Brenner to overturn the election and declare Frye the mayor.

McPherson conceded that ballots from some Murphy voters who also didn’t follow instructions were counted, including one who mailed in a sample ballot. Other ballots with poorly marked ovals were darkened by staff so the machine could read the votes, she said.

State election law and procedures approved by the secretary of state’s office, McPherson testified, permit election officials to correct or remake incomplete ballots when voter intent is clear.

For write-in votes, however, state law is equally clear, she said. If the voter makes no attempt to mark the oval, the vote does not count.

The distinction was lost on Frye supporters.

They say McPherson inconsistently measured voter intent and relied on differing sets of state laws and procedures. Fredric Woocher, the attorney for Frye supporters, tried to illustrate the point by quizzing McPherson on a few of the questioned ballots.

One of them was the ballot on which a voter had crossed out Murphy’s name and written Frye’s.

Is the intent of the voter clear on the ballot? asked Woocher.

McPherson hesitated. “I can’t tell you that,” McPherson said. “It’s likely.”

Woocher pressed the question, but the judge intervened. “In the nonlegal world, in all likelihood that voter intended to vote for Donna Frye,” Brenner said.

The debate baffled some observers.

“What gets a little Kafkaesque is the assertion that somehow it is difficult to figure what the voter intended,” said attorney Bruce Henderson, whose legal challenge is part of the trial.

The trial has centered on what principle of law governs the mayoral election: the one honoring voters’ intent or the one requiring compliance with the rules.

McPherson’s position has been supported by opinions of the California secretary of state’s office and San Diego City Atty. Michael Aguirre. Murphy’s attorney, Bob Ottilie, said more than a century of state court rulings also supports her position.

The election was the first time that San Diego County had used optical scanning equipment in the mayoral race. If an oval was not completely darkened, the machine kicked back the ballot.

McPherson said state law gave her some flexibility in handling such ballots. If voter intent could be discerned from a mark or pattern of marks, including Xs, or circles, the vote was counted. The law, she said, even allowed her to “remake” a sample ballot mailed in by a Murphy voter onto an official ballot.

But such rules, she said, didn’t apply if write-in voters didn’t try to darken the oval.

McPherson said she had not shown favoritism for Murphy in the race. She also said Frye voters were given some flexibility. They were allowed to write several variations of Frye’s name, including her initials, or just the word Donna, she said.

And if Frye voters didn’t completely darken the ovals, her staff did it for them.

McPherson’s sometimes complex testimony about vote-counting prompted the judge to say, “I never appreciated how complicated all this is.”

At one point, even Woocher, a longtime election law attorney, had trouble deciphering McPherson’s analysis of a ballot that had several conflicting marks.

“Now we’re really getting metaphysical,” he said.

The trial, before a judge only, is expected to conclude sometime this week.