Metropolitan News-Enterprise


Wednesday, December 8, 2004


Page 1


Challenge to San Diego Election Brought Too Late, C.A. Rules


From Staff and Wire Service Reports


The outcome of an election cannot be challenged on grounds other than those specified by statute, absent a serious constitutional violation, the Fourth District Court of Appeal ruled yesterday.

Div. Three denied a writ petition seeking a new runoff election for San Diego mayor and lifted a stay that prevented Mayor Dick Murphy, a former San Diego Superior Court judge, from being sworn in Monday for a second term.

“This challenge,”  Presiding Justice David Sills wrote, “...should have been brought before the election.”

The decision by the Santa Ana-based appeals court—justices in San Diego’s Div. One recused themselves—came one week after the court prevented the county registrar from certifying results of the Nov. 2 election. The final count showed Murphy with 157,959 votes, or more than 34.5 percent; Councilwoman Donna Frye with 155,851, or more than 34 percent; and San Diego County Supervisor Ron Roberts with 141,884, or 31 percent.

The lawsuit, filed by a supporter of Roberts, said the city violated its charter by allowing Frye to run as a write-in candidate—she entered the race five weeks before the general election—and sought a new election between Murphy and Roberts, the top two vote-getters in the March primary.

The charter does not explicitly address the issue of write-ins, but says that the top two vote-getters in the primary will be the “only candidates” in the runoff.

A 1985 California Supreme Court ruling said the city could not constitutionally preclude write-in votes in runoffs. The city subsequently enacted an ordinance providing for write-ins.

High Court Recedes

Two years ago, however, the state high court explicitly overruled the 1985 holding in a case involving a San Francisco mayoral runoff. The petitioner in the case ruled on yesterday, Thomas McKinney, argued that Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164 effectively revived the charter provision, invalidated the write-in ordinance, and required the city to hold a runoff election limited to Murphy and Roberts.

Since Frye’s candidacy was illegal, McKinney argued, the court should order a new election between Murphy and Roberts.

Retired Imperial Superior Court Judge Charles Jones, who was assigned to the San Diego Superior Court to hear the case, ruled that Frye’s candidacy was lawful under the city’s “custom and practice” of allowing write-ins, and that McKinney’s action was in any event barred by laches.

The Court of Appeal affirmed, but on a different ground. Sills said it was unnecessary to determine whether the charter bars write-ins, because the Elections Code bars McKinney’s suit.

Contest Grounds

The presiding justice noted that Sec. 16100 of the code—which McKinney’s attorney, John Howard, expressly disclaimed reliance on—establishes seven specific grounds for an elections contest. They include “malconduct” by a poll worker; ineligibility of the winning candidate; bribery of a voter or poll worker or “any other offense against the elective franchise” by the winning candidate; illegal votes; exclusion of eligible voters; errors by poll workers in the conduct of the election or the counting of the votes sufficient to change the outcome; or “error in the vote-counting programs or summation of ballot counts.”

Sills suggested that a contest based on ineligibility might have been appropriate if Frye won. But nothing in the statute, he said, allows “a post-election challenge...on the theory that one of the losers in the election...was ineligible for office and her presence affected the outcome.”

The jurist noted that under another Elections Code section, challenges to the configuration of the ballot must be brought by writ petition, filed early enough “that issuance of the writ will not substantially interfere with the conduct of the election.”

He rejected the argument that McKinney lacked a pre-election remedy because that section does not apply to municipal elections. Sills explained in a footnote that a San Diego ordinance incorporates the state code “if there is no controlling provision” in local law, and that McKinney could, in any event, have sought “basic” mandamus relief.

Sills also distinguished cases holding that an election may be overturned, even in the absence of statutory grounds, if there has been a violation of voters’ rights that rose to constitutional levels. Allowing a write-in candidate to qualify in contravention of a city charter does not amount to such a violation, Sills said.

 The court also gave short shrift to McKinney’s argument that he didn’t know about the charter rule on write-ins, saying that allowing a voter to claim ignorance before the election and sue after “would seriously destabilize California election law.”

Sills wrote:

“It means that voters can close their eyes and not check an election for irregularities—here, for example, apparent with the mailing of the sample ballot—and wait to see if the ineligible candidate has an effect on the outcome.”

Murphy, who has already declared victory, welcomed the ruling and called a City Council meeting for today to certify the results and allow him to be sworn two days after the inauguration was scheduled.

“It’s been a long journey but we’re getting closer to the finish line,” he told the council.

Frye refused to concede, saying she was “still in the hunt” and was considering whether to start a legal defense fund.

“Democracy isn’t so much about the voting as it is about the counting,” she told reporters.

The final tally excludes ballots on which voters wrote Frye’s name but failed to darken the adjoining oval. She estimates those ballots total up to 5,000, potentially enough to overtake Murphy.

The county registrar said that state election law prohibited her from counting the empty-oval ballots, a position that was upheld last month by another assigned Superior Court judge. Sills said yesterday the appellate panel was taking no position on that controversy.

Murphy would begin a second term in uneasy times for the nation’s seventh-largest city.

The U.S. Justice Department and FBI are investigating city officials involved in the city pension fund, which has a $1.17 billion deficit. The city manager and city auditor resigned this year under pressure, and the city has yet to audit its financial statements for the fiscal year that ended in June 2003.

Frye, a surf-shop owner who was backed by labor unions and environmentalists and who has often been on the losing side of City Council votes, campaigned on a platform of ending what she called a culture of secrecy and backroom deals. She called her opponents, both Republicans with support in the business community, “Mr. Status” and “Mr. Quo.”

The case is McKinney v. Superior Court (City of San Diego), G034762.


Copyright 2004, Metropolitan News Company