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Frye's write-in campaign brings city's inconsistent laws into spotlight

Losses in primary elections don't need to stunt candidates' ambitions

City Councilwoman Donna Frye's abrupt entry into San Diego's mayoral race has done more than send questions flying about what impact she might have on the outcome -- it has exposed a significant inconsistency between the city's charter and its municipal code.

While the charter appears to expressly limit the candidates for a general election to the two top finishers of a primary election, the city's governing laws have evolved over time and now allow write-in candidates for any city election.

It's an inconsistency some are saying should be addressed and could have been dealt with nearly two years ago when a court ruled that San Diego's charter did not violate the state's constitution.

As it stands, the city's primary elections -- traditionally held many months before general elections, and at additional cost to taxpayers -- do nothing legally to filter candidates or winnow finalists for local elected office, according to the city clerk and current municipal code.

Executive Assistant City Attorney Leslie Devaney, who is running to replace her boss as head of the office, noted the discrepancy.

"It would be nice if the municipal code was consistent with the charter," Devaney said.

Her opponent in the race, consumer fraud attorney Mike Aguirre, refused to comment, saying he may have to deal with the issue if he wins the election in November.

City Attorney Casey Gwinn and Assistant City Attorney Les Girard did not respond to requests for comment about the issue.

But Frye's candidacy has brought a reality of the city's election practices to light.

The only purpose of primary elections, under current law, is to determine whose names will appear on the final runoff ballots. So most any resident, including those who lose in a primary election, can still be considered candidates in the final runoff.

Of course, they have to persuade voters to actually write in their preference on the ballot.

"Even if somebody ran in the primary and lost they could run in the general election as a write-in candidate as long as they pull the paperwork and do the things they have to do," Chuck Abdelnour, San Diego's long-time city clerk, said Thursday.

The clerk did say, however, Frye's candidacy might face a legal challenge.

"The city attorney will have to defend me, but I have a call in to my own lawyer as well," Abdelnour said.

It hasn't always been this way.

Until 1985, San Diego prohibited write-in candidates from participating in run-off elections. That year, however, the city found itself obligated to defend the restriction in front of the California Supreme Court.

In that case, known as Caanan v. Abdelnour, the court found San Diego in violation of free-speech protections and forced the city to change its laws to allow write-in candidates.

Prohibiting write-in candidates for a run-off election constituted a "drastic" restriction on "the fundamental rights of candidacy and voting," according to the court in 1985.

So officials changed the municipal code but left the city's charter -- it's constitution -- alone. And still the charter appears to limit the final candidates in any general city election to two.

Unless a candidate gets more than 50 percent of the vote in a primary election, the top two candidates move on to fight for the seat in the general election.

"The two candidates receiving the highest number of votes for a particular elective office at said primary shall be the candidates, and only candidates, for such office," reads the city charter.

A much more recent decision by the California Supreme Court made it possible to bring the municipal code in line with the charter.

In 2002, the court overruled its earlier opinion and decided that a San Francisco law prohibiting write-in candidates from run-off elections did not, in fact, violate free-speech laws.

And after that ruling, initial efforts were made in the city of San Diego to address whatever affect the court's ruling might have, but they were not pursued further.

The ramifications of the court's decision in the San Francisco case, meanwhile, reverberated in communities across the state that wanted to preserve the right to regulate write-in campaigns.

The court's opinion explained why it was important for San Francisco to maintain its ability to ban write-in candidates from runoff elections.

"Permitting write-in votes even in the run-off would defeat San Francisco's purpose in having a run-off election -- to ensure that the winning candidate receive a majority of the votes. Write-in votes in the run-off could perpetually deny anyone a majority," the court opined in 2002.

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