Appeals Court Denies Request for New Election in San Diego Write-In Case

Today the 4th District Court of Appeal in Santa Ana denied a request to halt the certification and order a revote in the San Diego mayoral election.

The lawsuit, filed by a supporter of third-place finisher Ron Roberts, said the city violated its charter by allowing Frye to run as a write-in candidate and sought a new election between Murphy and Roberts, the top two vote-getters in the March primary.

In the decision, The court declined to consider whether the city violated its charter, saying the challenge should have come before the election. The lawsuit by Thomas McKinney, who works in the office of Roberts supporter John Howard, was filed six days after the vote. The Court noted that it was not considering the separate question whether write-in votes cast for Frye that were not bubbled correctly should be counted. That is the subject of a separate suit and possible post-certification contest by Frye.

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

The final tally — which shows Murphy with 34.5 percent, Frye with 34.1 percent and Roberts, a San Diego County supervisor, with 31 percent — 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.

Copies of All State Ballots Available

Anyone who wishes to obtain a copy of each state’s ballot may do so, by sending $10 to Ballot Access News, PO Box 470296, San Francisco Ca 94147. You will receive a copy of each state’s ballot, on a piece of 8.5 inch by 11 inch paper. Since many ballots are larger than this, what you will receive (in the case of over-size ballots) is that part of that state’s ballot that contains the presidential candidates. The packet also includes the Guam and D.C. ballots.

Cobb-Badnarik Request for Ohio Recount Wins a Round in Court

Today, U.S. District Court Judge Edmund Sargus, of Columbus, Ohio, temporarily let the Ohio presidential election recount go forward. That recount had been requested by David Cobb and Michael Badnarik. State ex rel Delaware Co. Bd. of Elections v National Voting Rights Institute, David Cobb & Michael Badnarik, no. C2-04-1139.

Last week, a state court judge in Delaware County had issued an injunction against the recount, but attorneys for Cobb and Badnarik removed that case to federal court. The federal court will hold a further hearing, but in the meantime the recount may proceed.

Montana Constitution Party Legislative Win Now a Tie; State Politics Set for a Wild Ride

Yesterday, a recount in Montana’s state house district 12 showed a tie between Rick Jore, the Constitution Party candidate, and his Democratic opponent. Jore accepts the recount as fair, but the Democrat does not.

This creates a wild and confusing situation. A tie would result in a “vacancy,” allowing the Governor to choose the winner. The current Governor is a Republican, but she will be succeeded by a Democrat next month. The disputed seat is the deciding vote in a split legislature: if Jore wins, the Republicans will control the State House. If the Democrat wins, the State House will be tied and the Speaker of the House will be chosen by the same party as the incoming Governor, a Democrat.

Democratic candidate Jeanne Windham went to court yesterday and received an injunction blocking the Secretary of State from certifying the election and blocking the Governor from appointing a winner.

Judge Dorothy McCarter will hold a hearing on the issue December 10. In addition, Democrat Windham said she intends to file a separate legal action asking state courts to throw out five disputed ballots. On each of the disputed ballots, voters made marks for both Jore and the Republican in the race, Jack Cross. Lake County election officials and the local recount board, however, decided to count the votes for Jore. They said marks on the ballot indicated the voters intended to vote for Jore. On four of the ballots, the voters also marked an “X” on Cross’s name. On a fifth ballot, the voter placed a squiggly line next to Cross’s name. Windham and state Democratic officials said if it’s not clear which candidate the voters are choosing, state law requires the ballot to be thrown out. If any of these ballots are disqualified, Windham wins the race. Chuck Denowh, executive director of the Montana Republican Party, said Windham’s claim is “pretty frivolous,” and that he thinks voters who cast the disputed ballots clearly intended to choose Jore.

High Court Refuses to Hear Write-In Case

On November 29, the US Supreme Court refused to hear the Terry Baum case, Baum v Superior Court, no. 04-416. The issue is whether write-ins should count if the voter didn’t check the box next to the name that the voter had just written in. The case originated in the Green Party congressional primary in March, 2004, in San Francisco.

The court’s refusal to hear the case was discouraging for Donna Frye, who probably received more votes than any other candidate on November 2, 2004, for Mayor of San Diego. Frye was credited with 155,454 write-in votes. Incumbent Mayor Dick Murphy received 157,938 votes, and the other candidate whose name was printed on the ballot, Ron Roberts, got 141,874.

However, there were at least 4,500 write-in votes in the San Diego Mayoral election which were never counted, because the voter didn’t check the box next to the name written in. Probably at least 95% of them were for Donna Frye, so if the votes had been counted, Frye probably would have won.

The League of Women Voters had sued to require that all San Diego write-ins be counted, by a California Superior Court Judge had ruled against the League on November 22. League of Women Voters v McPherson, no. 838890. Donna Frye, as a real party in interest in that lawsuit, is free to appeal if she wishes. She has not formally announced whether she will appeal.