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Legal challenges come to mayoral vote count

Lawyer seeks halt to tabulation, new election

The first of long-rumored legal challenges to City Councilwoman Donna Frye's potentially successful write-in campaign for mayor hit the San Diego Superior Court Monday.

John Howard, a San Diego attorney with the firm J.W. Howard/Attorneys, filed a lawsuit seeking to immediately halt the ongoing and tedious count of Frye's write-in votes and the remaining absentee and provisional ballots countywide.

While Frye appeared to have a lead in the count by a razor-thin margin, many claim that her candidacy should not have been allowed.

As The Daily Transcript first reported Oct. 14, Frye's sudden entry into the race for mayor as a write-in candidate thrust into the spotlight an apparent discrepancy between the city's charter and its operational policies.

While the policies appeared to allow a write-in candidate for all elections, the city charter says that after a primary election, if nobody receives a majority of the vote, the top two finishers move on to a final election.

"(Those two) shall be the candidates, and only candidates, for such office," the charter reads.

A 2002 California Supreme Court ruling determined that such language could legally be interpreted as a prohibition on write-in candidates for general elections. But neither the city's charter nor its city municipal code was ever amended so that they corresponded, considering the court's ruling that such cohesion was possible.

In an interview, Howard said he had only recently become aware of the circumstances that make a challenge to Frye's candidacy valid.

"I was not paying attention during the election process, as I was busy with my nonpolitical issues," Howard said.

As the issue came up in media reports, he decided litigation was necessary, Howard said.

"In the absence of seeing anybody do anything about it I decided to proceed with it ourselves," he said.

Howard's suit seeks not only to halt the ongoing count, but to implement a new election for mayor in which only County Supervisor Ron Roberts and incumbent Mayor Dick Murphy are the candidates.

As for the estimated 125,000 voters who chose Frye, Howard said they should have gotten involved at an earlier stage.

"They need to be sure they're voting for a candidate who's qualified to run in the future," Howard said.

Howard, a political supporter of Roberts, said he had given money to the supervisor's campaign.

Earlier in the day, Frye had asked Murphy and Roberts to denounce any legal attempts to thwart her pursuit of the office.

Legal challenges at this stage were inappropriate, she said.

"Not content to allow democracy to work, they are resorting to after-the-fact, desperate tactics to thwart the will of the voters of San Diego," she said.

Murphy said the lawyers should wait.

"It would be in the best interest for everyone to let the vote count be completed before people began considering legal option," the mayor said.

Roberts, appearing on the Roger Hedgecock Show on KOGO radio, said he never conceded defeat in the race for mayor and that he would hope to be a candidate in some kind of runoff.

"My position is to abide by whatever the voters come up with in a legal election," Roberts said.

Related Articles:

City attorney: Write-in campaign will be defended (Nov. 4 ,2004)

Proponents of Proposition F contemplate Frye, strong mayor (Nov. 3, 2004)

Roberts concedes defeat in mayoral race (Nov. 3, 2004)

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