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Attorney appeals ruling to not count 'unbubbled' votes

Beginning perhaps another chapter in the "Who is Really San Diego's Mayor" saga, an appeal was filed Thursday challenging a judge's decision to not count "unbubbled" votes.

Santa Monica-based attorney Frederic Woocher filed the appeal, which seeks to overturn a ruling in San Diego Superior Court declaring Murphy the winner on Feb. 2.

Bob Ottilie, Murphy's lawyer who prevailed in the original case, said this appeal is bad for the city.

"People have a right to appeal," Ottilie said in a prepared statement. "It's unfortunate that these folks will not put the best interests of the city ahead of their personal political agenda."

The case before the bench pits state and local election codes against each other. At issue are 5,551 disputed ballots -- and hence, the election. The ballots, identified during the last court case, are in dispute because voters wrote in Donna Frye's name but neglected to color in the corresponding bubble.

According to California state election code, the corresponding bubble must be filled in for the vote to be counted.

Judge H. Michael Brenner, from Orange County, presided over the matter after San Diego judges were recused. Murphy is a former Superior Court Judge.

Brenner ruled that Murphy would remain mayor because the San Diego City Council consolidated the election with the state election on July 26. Under this agreement, the state election code trumped the municipal code.

Woocher said his legal team is in a better position because the case had already been tried once.

"In some ways we are almost better off now," he said. "I think it's a very useful purpose to get the facts out there and now have a record to go to the court of appeal with."

Woocher, who represents three Frye supporters, said he has not been paid for the last trial, but noted that a nonprofit organization, County Every Vote - San Diego, has been established to collect donations.

Meanwhile, Murphy has set up legal defense fund accounts at the city and is collecting donations -- up to $250 per account -- to fund his legal effort.

Research:

Find more information about Mayor Dick Murphy, Councilwoman Donna Frye, Frederic Woocher

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