Jan 10, 2005
Lawsuits in San Diego Election Pit Voter Intent Against Ballot Rules
By Elliot Spagat
Associated Press Writer


SAN DIEGO (AP) - In Florida in 2000, it was hanging chads. Now, the outcome of San Diego's mayoral race hinges on empty bubbles.

Attorneys who want to unseat San Diego Mayor Dick Murphy are bound for court, arguing that he wrongly began a second term last month. Two lawsuits contend the county registrar ignored voter intent by disqualifying ballots for write-in candidate Donna Frye because voters failed to darken an adjoining oval.

Legal experts said that while courts do give weight to voter intent, Frye's supporters may have a tough time because state election law was not followed exactly as stated.

"Voter intent was pretty unambiguous," said Elizabeth Garrett, a law professor at the University of Southern California. "Voters wrote in a name and they didn't vote for anyone else ... It's very much a technicality."

For many, the legal battle has stirred memories of the contentious Bush-Gore battle in the 2000 presidential election. Like Florida, judges will likely determine the final outcome of the San Diego race, leaving many voters in the nation's seventh-largest city feeling cheated.

Since 2000, election officials and courts appear to be giving less consideration to voter intent and more to whether ballot instructions were followed, said Bruce Cain, a political scientist at the University of California at Berkeley.

"The courts want to protect themselves from political criticism," he said. "The safest thing to do is to say the rules are the rules."

In San Diego's official tally, Frye, a councilwoman, lost to Murphy on Nov. 2 by just 2,108 votes. The registrar excluded more than 5,000 ballots on which voters wrote Frye's name but did not fill in the corresponding bubble.

Murphy's camp defended the decision, citing a 1998 state code that says write-in votes should be disqualified "unless the voting space next to the write-in space is marked or slotted as directed in the voting instructions."

Attorney Fred Woocher, who filed the latest San Diego lawsuit, said other rulings have upheld counting ballots when instructions weren't followed to the letter.

Specifically, a 1986 California Supreme Court decision let stand an election to incorporate East Palo Alto despite complaints that absentee ballots were mishandled, he said.

"This has been one of the bedrock principles of election law - to allow as many people as possible to have their votes counted," he said.

Garrett noted that the San Diego cases are complicated because Frye supporters had repeatedly reminded voters in campaign literature that they must fill in the bubbles for ballots to count.

"To deal with it now is more problematic," Garrett said. "Election rules are decided before the event. That's how we know it's fair."

Daniel Lowenstein, a professor at the University of California, Los Angeles, Law School, said the bubble requirement "is a silly rule" that is bound to cause voters to make mistakes.

Still, he said, it's important to have clear ground rules that are followed in elections. "I wouldn't want to venture a prediction" on the outcome of the San Diego case, he said.

AP-ES-01-10-05 0453EST

This story can be found at: http://ap.tbo.com/ap/breaking/MGBU8EBHS3E.html

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