- The Washington Times - Monday, January 10, 2005

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

Lawyers 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 had failed to darken an adjoining oval.

Legal experts said that although courts give weight to voter intent, Miss 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 fight has stirred memories of the battle between Texas Gov. George W. Bush and Vice President Al Gore in the 2000 presidential election. Like Florida, judges likely will 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, Miss Frye, a Democrat and council member, lost to Mr. Murphy, a Republican, on Nov. 2 by 2,108 votes. The registrar excluded more than 5,000 ballots on which voters wrote Miss Frye’s name but did not fill in the corresponding bubble.

Mr. 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.”

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

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.

Miss Garrett said the San Diego cases are complicated because supporters of Miss Frye repeatedly had reminded voters in campaign literature to fill in the bubbles for ballots to count.

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

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

Still, he said, it is 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.

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