A trial that could change the outcome of the city of San Diego's mayoral election began Monday with extensive questioning of Sally McPherson, the Registrar of Voters, who oversaw all elections in the county.
The trial consolidates two lawsuits filed by five San Diego voters who wrote in Donna Frye for mayor but did not fill in a corresponding bubble as directed. The Registrar of Voters declined to count 5,551 ballots in which voters wrote in Frye's name but did not fill in the bubble. The ballots are being held in locked cages at the registrar's office, but were copied and submitted as evidence in the trial, which is expected to last two to three days.
Orange County Superior Court Judge H. Michael Brenner is hearing the case.
Fred Woocher, a Santa Monica attorney representing three of the San Diego voters, framed the case around two constitutional underpinnings: that recounts operate under different rules because of the need for manual rather than machine count, and that the failure to count the unbubbled ballots violates the equal protection clause under the state constitution.
Woocher said the constitution prohibits elections officials from treating some voters differently than others.
During more than an hour of questioning, McPherson testified that her staff corrected the ballots of voters who made check or X marks in the ovals to ensure the ballots were counted, despite the fact that voter instructions explicitly state that check and X marks are not allowed. In fact, both sample ballots mailed to voters ahead of the election and posters in each voting booth stipulate that X and check marks are not allowed.
The registrar did not correct the ballots of voters who wrote in Frye's name but did not fill in the oval, however. Voters received no prior instructions from the Registrar of Voters about how to cast a write-in vote before receiving their official ballots at polling stations on Election Day. The sample ballots mailed ahead of time do not discuss how to cast a vote for a write-in candidate.
McPherson testified about how the registrar handled ballots in which a voter check marked all the ovals on their ballot except the oval corresponding to the write-in candidate. If the voter wrote in Frye, but did not fill in the oval, the registrar's staff didn't correct that part of the ballot, but did correct the check marks. Similarly, if a voter filled in a bubble for one candidate and then changed his mind, crossed it out and then filled in another candidate's oval, the registrar placed a white sticker over the crossed-out oval so the machine would count the ballot correctly.
In another example, presented by Woocher during opening arguments, the registrar's staff counted an absentee ballot in which the voter did not fill in or mail the actual official absentee ballot. Instead, the voter mailed in the sample ballot and information guide and indicated candidate preferences with check and X marks.
"It's hard to imagine a greater deviation from what was required," Woocher said of the absentee voter's ballot. The voter did not follow instructions or submit a legal official ballot and yet the vote, cast for Mayor Dick Murphy, was counted.
Woocher's questioning of McPherson is expected to continue for about two hours on Tuesday. Two expert witnesses from Solano and Santa Barbara counties will follow McPherson's testimony. One of the witnesses is a former employee of Diebold (NYSE: DBD), which manufactures the optical scanning machines used in the last election and has extensive experience in state elections law, according to Woocher.
The court also heard testimony from Assistant City Clerk Joyce Lane regarding city codes governing how candidates are nominated to participate in an election. Woocher and San Diego public interest attorney Bruce Henderson, who represents two San Diego voters, said city law applied to candidate nominations and several other parts of the mayoral election even though the election was consolidated and operated under state law.
Bob Ottilie, who represents the defendant, Mayor Dick Murphy, in the lawsuits, asserted several objections to the relevancy of Woocher's questioning. Ottilie argued that when the City Council passed an ordinance to contract the city election to the county Registrar of Voters it agreed that the election would be conducted under state law. Therefore, the unbubbled ballots should not be counted because state law and case law dating back 100 years holds that when a voter does not cast a ballot correctly, the ballot does not count, Ottilie said.
He told the judge that if he rules in favor of the plaintiffs he will have created a law that applies a general voter intent protection on all ballots -- something the state Legislature has declined to do.
"The trial they want to put on is really a legislative hearing," Ottilie said.