Peace through victory - the American way.

Tuesday, December 28, 2004

Tell it to Al Qaeda

Some variation of this post's headline is the proper response when somebody says that the war in Iraq is a distraction from the war on terror. "Tell that to Al Qaeda," or "tell that to the terrorists" or "the Islamists." Take your pick. But those are the proper responses.

The story linked above has Bin Laden calling for a boycott and blessing Zarqawi as his representative in Iraq. Just the latest example of how important Iraq is to the Islamists.

If the war in Iraq is a distraction from the war on terror, why are the terrorists fighting us so hard there? The answer ought be pretty obvious. They know Iraq is a major front in what we call the Global War on Terror and what they refer to as their Jihad. If we complete our victory there we will have eliminated two state sponsors of terrorism in Iraq and Afghanistan. And in the process we will have shown that there is a democratic alternative to Islamist and secular totalitarianism in the Muslim world. And most important, that we are committed to making the alternative happen. A fact that ought to matter to people seeking democracy in the region.



Sunday, December 19, 2004

Night of the living dims: why Donna Frye should concede

Losing San Diego mayoral write-in candidate Donna Frye so far has not taken any actions to contest the election. She did not request a recount; instead an attorney representing Fyre voters, joined by the local media, did. She has not filed an election contest lawsuit.

Even though she has not proactively taken measures to challenge the election her refusal to concede is keeping this dispute alive. For the good of the city, Frye should call off her supporters and concede the election.

Here's why:

Litigation will be divisive, regardless of the result.

Already the barometers of public opinion in San Diego are rising. Local radio devotes hours to the election dispute with impassioned voters on each side calling to make their points and belittle their opponents. The "Letters to the Editor" section of the local newspaper is dominated more and more by the topic. Protestors have hit the streets demanding that every vote be counted.

All this before an election lawsuit has been filed.

Her hollow mandate.

Even assuming the unlikely occurs and Frye convinces a court to give her the election, she would have a hollow mandate for governing.

If adhered to, San Diego's Charter provides a mandate to the winning mayoral candidate. That's because the charter contemplates a primary election with multiple candidates but a general election with only two. Limiting the general election to two candidates ensures that any mayor is elected only after first getting through the primary and second after receiving a majority of the vote in the general election. The ability to claim majority support among the voters strengthens the mayor's position vis a vis the members of the city council who are elected by district.

This year, however, the charter didn't work because Frye avoided the primary election and was allowed to run as a write-in candidate in the general election. Thus, the current mayor, Dick Murphy, won with roughly a third of the legally cast votes. If Frye's suit were successful, she would be declared the winner by a court with roughly a third of the votes, and with the decisive votes coming from legally questionable votes. She would not be able to claim support from a majority of the voters.

Although Frye's platform of reform is popular in San Diego because of this city's catastrophic situation, that reform platform is not hers alone. Newly elected City Attorney Mike Aguirre also ran as a reformer and he won by going through a primary election and by winning a majority of the votes city-wide in the general election. The reform mandate would be his to claim not hers.

Mitigate harm to the city.

The financial and political situation in San Diego is catastrophic and requires the mayor and council to pull together and address the problems together. The events since the election have already put a cloud of illegitimacy over the head of Mayor Murphy. In the minds of many voters, he should not be the mayor because they believe the invalid write-in votes for Frye should be counted. Whether there's is a legally tenable position is irrelevant. What matters is that a substantial number of San Diego's voters believe the current mayor was not re-elected.

Frye's strength as a politician has been that she appears to put the interests of the city above her own. She has been a minority vote on the council, an opponent of the establishment, and an outspoken critic of the actions that got the city into trouble. Calling off her supporters and conceding the election will solidify that image in many voters' minds. Frye would be seen as putting aside her own personal ambition to be mayor in favor of moving forward and bringing the city together to work on the huge problems facing the city.

Setting the stage for the 2008 mayoral election.

A significant consequence of proceeding with a lawsuit will be to limit Frye's voter base to the minority that already voted for her. She received only a third of the votes in the general election. With passions running so high on the issue, the chance of permanently alienating the two-thirds of voters who voted against her is high. If her lawsuit were to succeed the damage from that might seem less consequential with each additional day she serves as mayor. A successful term as mayor would improve her chances at re-election in 2008.

However, Frye's legal case for challenging the election is a difficult one to make. The law is strongly against Frye's position so losing is a likely outcome. Come 2008, she'd have to overcome the distaste of many voters over her decision to drag the city through a contentious and needless lawsuit.

Also important to Frye's prospects in 2008 is the fact that Mayor Murphy is ineligible to run in 2008 due to term limits. The other losing candidate in the general election, Ron Roberts, is a career politician with a long record who has tried more than once to be elected mayor and failed. Frye, on the other hand, is at the beginning of her political career. She has a strong base of support among voters concerned about San Diego. She made an incredibly strong showing for a novice political candidate running as a write-in.

If Frye were to concede the election and encourage the city to move forward and come together to solve its problems, she would be the candidate to beat in 2008.



Night of the living dims: the legal strategerie is confirmed.

This blog's predictions of the probable legal arguments in the lawsuit soon to be filed on behalf of losing write-in candidate Donna Frye are being confirmed.

First, this blog looked at the elections code and predicted that Frye's supporters would have a hard time overcoming the legal requirement for a write-in vote that the bubble be marked using the intent of the voter argument. It turns out that the intent of the voter test only applies when reading the name the voter has written. That test permits a write-in vote to be counted if the name is reasonably close to the name of the candidate. But the statute defining a write-in vote requires that the voter make the proper mark next to the name for the vote to be counted; in this case, marking the bubble. If the bubble isn't marked, the vote won't be counted. (See prior post here.)

Now the attorneys representing the candidates have outlined the same argument in today's Union-Tribune. Fred Woocher, the Frye voters' attorney, said, "I don't think you can interpret that section to say those votes don't get counted ever. I think (a court) is going to say they just don't get counted in the machine review. Every time you do a manual recount, it is precisely because the machine did not catch some votes." The mayor's attorney, Bob Otille, said, "The act of putting a name on the line isn't a vote. The vote is filling in the oval." And the campaign manager for a write-in candidate who tried the same arguments in a failed legal challenge in the Bay Area said, "In California, the standard now is every vote - in technical compliance with the law - shall be counted."

This blog also predicted that an important legal argument would be over whether the law that permits elections officials to fix defective votes to ensure they are counted should apply to the disputed write-in votes. (See prior post here.)

In today's newspaper, the attorney pushing the legal challenge on behalf of Frye's voters complained that it was not fair when San Diego's elections officials used that law to fix some defective votes but not to fix the disputed write-in votes. As predicted, the mayor's attorney argued that the fixed defective votes are legal and it was proper to fix them because a mark was made, whereas the disputed write-in votes can't be fixed because they aren't legal votes.



Friday, December 17, 2004

Night of the Living Dims: the legal strategerie emerges.

As expected the registrar of voters denied attorney Fred Woocher's request to count the invalid write-in votes, which means his next step is to go to court to challenge the election result. Woocher declined to discuss his options but his only real relief will have to come in court.

His likely legal strategy to convince a court to count the invalid write-in votes will be to argue that the registrar was obligated to fix the invalid ballots where the voter's intent was clear so that they could be counted. Given the very clear definition of a legal write-in vote (fn.1) it's a tough argument to make, but there is a provision in the code that gives him a platform to stand on.

Elections Code section 15210 gives the registrar the right to fix "voted ballots ...[that] "are torn, bent, or otherwise defective ... so that every vote cast by the voter shall be counted by the automatic tabulating equipment." The statute even allows the registrar to make "... a true duplicate copy of the defective ballot ... following the intention of the voter insofar as it can be ascertained from the defective ballot."(fn. 2)

The registrar used her power under this statute to fix ballots and also to prepare duplicate ballots but did not use it to fix the invalid write-in ballots. The Frye camp's argument will be that the statute is broad enough to apply to the write-ins because those were "voted ballots" that were "otherwise defective." The problem remains that votes have to be voted properly to be counted and section 15210 doesn't change that.(fn. 3)

All 15210 does is to permit the registrar to fix properly voted ballots to ensure that they are counted by the machine. Such a ballot that is not torn or damaged but is "otherwise defective" might be one where the voter only filled in part of the bubble making it possible that the machine wouldn't count it. Since a legal vote only requires a mark in the bubble the vote is legal but defective. This kind of defective vote is different from a write-in vote where no attempt was made to make the appropriate mark next to the name. For that reason, the court might rule against Frye's argument.



fn. 1. Elections Code section 15342: "Any name written upon a ballot for a qualified write-in candidate, including a reasonable facsimile of the spelling of a name, shall be counted for the office, if it is written in the blank space provided and voted as specified below."

Elections Code section 15342, subdivision (a): " write-in vote shall be counted unless the voting space next to the write-in space is marked or slotted as directed in the voting instructions."

fn. 2 Elections Code section 15210: "In preparing the voted ballots for processing, any ballot that is torn, bent, or otherwise defective shall be corrected so that every vote cast by the voter shall be counted by the automatic tabulating equipment. If necessary, a true duplicate copy of the defective ballot shall be made and substituted therefor, following the intention of the voter insofar as it can be ascertained from the defective ballot. All duplicate ballots shall be clearly labeled 'duplicate,' and shall bear a serial number that shall be recorded on the damaged or defective ballot."

fn. 3 Elections Code section 15154, subdivision (a): "Any ballot that is not marked as provided by law or that is marked or signed by the voter so that it can be identified by others shall be rejected...."

Elections Code section 15154, subdivision (b): "The following ballot conditions shall not render a ballot invalid: (1) soiled or defaced. (2) Two or more impressions of the voting stamp or mark in one voting square."


Thursday, December 16, 2004

Regime change in America's Finest City

San Diego's city politics is finally getting interesting, in the Chinese curse - "May you live in interesting times" - sense of the word.

Mismanagement of San Diego's pension plan is one of the factors which made "America's Finest City" ripe for takeover by an insurgent non-establishment mayoral candidate this year. While things are slowly heating up in the mayoral vote count fiasco, over at the pension board the pot has come to a full boil and blown the lid off.

The pension board is apparently one dysfunctional organization. Board member Diann Shipione has done this city an enormous public service by spotlighting the underfunding problems with the pension fund. Apparently, she has few friends among her fellow board members. The rest of the board had agreed on a plan to arrest Shipione and have her removed from a private meeting. The plan never was implemented but one wonders just what was going through their heads when they agreed to it. Did they think they were a condo association board?

Meanwhile, San Diego's just elected city attorney, Michael Aguirre, a long-time local anti-establishment activist, has discharged the board's legal counsel and made himself the board's attorney. The former City Attorney had permitted the board to retain private counsel, which perhaps wasn't such a bad idea considering the bang up job the city did making sure San Diego's election rules make sense.

Can the Marines be far behind?



Wednesday, December 15, 2004

Night of the Living Dims: some call them "technicalities."

The rhetoric heated up a bit today as Dick Murphy claimed the mantle of legitimacy because he "got the most legal votes. That's the way it works in America." We can only hope that remains the case but we shall see.

Murphy also went on the offensive by saying "... illegal votes don't count, and everybody knew you had to fill in the bubble for the vote to count. The registrar of voters has said that repeatedly. The court upheld that. Even Donna Frye knew that."

Murphy makes an obvious point supported by the law but it's one that many people want to ignore because of how they feel.

For her part, Donna Frye really raised the rhetorical stakes by bringing up the racist methods from the past, like literacy tests, which were used to disenfranchise African-Americans. "Let's face it, this is not a literacy test. This is an expression of the intention of the voter. I feel frustrated, and I feel that a lot of people have been disenfranchised on a technicality."

What some call technicalities others know as laws.

The votes of citizens cast legally should be protected from the dilution that would occur if votes not cast legally were given equal weight. The election laws ought to matter.

As this blog has argued before, the secret of this country's stability is that we have legal and clear methods for the peaceful transfer of power from one government to the next, and everybody buys into the rules. If the rules need to be changed, the way to change them is the same way they were passed. Get the legislature to do it or pass an initiative.

Certainly, Frye and her supporters have a legal right to go to court to contest the election but they don't have a right to have a court rewrite the statute defining how a vote must legally be cast to achieve their result. And that's exactly what would have to happen.

The statute defining a legal write-in vote has two parts to it. One part does focus on the intention of the voter. But the intention of the voter is not the critical part. The intention of the voter is important in construing whether a write-in vote should be counted for a candidate. The statute says, "Any name written upon a ballot for a qualified write-in candidate, including a reasonable facsimile of the spelling of a name, shall be counted for the office, if it is written in the blank space provided and voted as specified below." (Elections Code, section 15342.)

So far so good for Frye's votes. All a voter has to do is to write the name or something close to it in the right spot and the vote counts. The intent is what matters.

Unfortunately, the important part of the statute is the part "specified below," which says, " write-in vote shall be counted unless the voting space next to the write-in space is marked or slotted as directed in the voting instructions." (Elections Code, section 15342, subdivision (a).)

What the law gives with one hand, the law takes away with the other.

It turns out then, far from being a mere technicality, the requirement to "fill in the bubble" is the most important part of voting for a write-in candidate. A voter could have written Donna Frye's name in just about any manner imaginable and still have the vote counted as long as the proper mark was made next to the name. But a voter who perfectly spelled the name and didn't fill in the bubble, has not cast a valid vote. The intent of the voter only matters in counting legally cast votes. The intent of the voter makes absolutely no difference if the vote is not cast legally.

A stupid law perhaps, but the law nonetheless, and one the California Constitution requires be followed, at least until it gets changed. Our constitution doesn't guarantees that all votes will be counted, it only guarantees that all votes will be counted that are cast "in accordance with state law." (Article 2, section 2.5.)

Murphy's right. Only legal votes get counted and no amount of "feeling" frustrated or "feeling" that disenfranchisement has occurred will change that.


Tuesday, December 14, 2004

The Night of the Living Dims begins.

The media's requested examination of the illegal votes in San Diego's mayoral election has successfully laid the groundwork for Democratic write-in candidate Donna Frye to go to court. The examination revealed that had her supporters had the sense to vote legally she would have won the election. The next step will be for Frye to request a full recount or go to court to file an election contest and seek a ruling that the illegally cast votes should be counted.

So here we go again. Once again the Dims will go to court on behalf of their dim voters in order to set aside an election. The Election Code seems pretty clear that the write-in votes are not valid. (See footnote 2 here.) But the litigation on the issue will be intense as the election is challenged by invoking democracy, ironically, by arguing that the democratically enacted electoral rules should not be followed. In the name of preventing "disenfranchisement" of voters who cast their votes illegally, the Dims will dilute the votes of those who cast their votes legally and who voted for a legal candidate.

San Diego's City Charter states that the only two candidates in a general election for mayor shall be the two front runners from the primary election. Frye didn't even bother to run in the primary but inserted herself in the general election as a third candidate. The city's municipal code, which is subordinate to the charter, permits write-in candidates in the mayoral general election. This conflict of laws was never corrected by the outgoing city attorney. (Thanks for nothing, Casey Gwinn.)

Dick Murphy has not shown himself to be much of a fighter so far but he'd better be preparing himself for the assault. In addition to challenging the legality of the write-in votes, he needs to be ready to argue that Frye's candidacy was illegal in the first place and that all of Frye's votes were illegal for that reason.

In the great horror movie, "The Night of the Living Dead," zombies attack the house all night and the people inside are helpless to escape or to fight them off. Most don't survive the night. Victory comes in the morning when the authorities arrive to attack and kill the zombies.

There's a lesson in that movie for Murphy as the Night of the Living Dims descends on San Diego. Defense is a losing strategy. Go on the offensive and attack the zombie voters who screwed things up. Challenge the legitimacy of their votes and the legitimacy of their candidate. Their looming attack is nothing less than an attack on the legitimacy of Murphy's tenure and on the legitimacy of the rules of our democracy.

Aim for their brains; it's their weak spot.



The Electoral College voting day boycott.

Some blue-state Dims (sorry, "Democrats") unhappy with losing the election pushed a boycott to take place on the days the Electoral College voted. Their plan was for people to pay for everything in cash that day. Misteramericano made all his purchases by credit card on those days.

Fight 'em any way you can!



Monetary value of media recount to candidate Donna Frye.

Today's Union-Tribue clarifies that the media recount requests seek only to count the invalid write-in ballots. The cost of that recount is a minimum of $2,000 for today's work. (A later story in today's Union-Tribune suggests the examination of the invalid votes could conclude today: A full recount of all votes cast could cost from $150,000 to $200,000.

Frye, the losing write-in candidate, chose not to ask for her own recount, although some of her supporters did. Frye is keeping her options open on filing an election contest lawsuit before January 7, 2005, as she awaits the results of the recounts. Whatever she chooses to do the media's recounts have benefited Frye financially by paying for the examination of the invalid votes and by saving her from seeking a full recount before she goes to court. Of greater importance, the media recounts are providing the evidence she needs to contest the election.



Monday, December 13, 2004

Who will pick San Diego's mayor? The voters, the courts, or the media?

Just what are the local media in San Diego asking the Registrar of Voters to do in the San Diego mayoral election? Recent stories in the Union-Tribune describe recount requests made by local media, including the newspaper. It's not entirely clear from the stories but it appears the requests ask that only the invalid votes cast for Donna Frye be counted. (Those are the invalid votes where the voter wrote in Frye's name but failed to follow election rules and darken the oval before the name.) Since those votes were never counted in the first place the media are not really requesting a recount.

If the media requests are to count only the uncounted votes then this so-called recount alone would not overturn the election result. Election Code section 15632 provides that a recount can overturn an election result but only if votes are counted "in each and every precinct" where the election occurred. Thus, a full recount could overturn the election but any partial new count cannot be used to overturn the election.(fn. 1.)

It would help clarify the situation if the media would clearly state whether the recount will be a full recount or whether it will count only the uncounted write-in votes for Frye.

Whatever the case, San Diego's voters haven't seen the end of this mayoral contest.

Frye, or any Frye voter, may file an election contest in court within 30 days of the certification of the election that occurred last week. (Section 16401.) One ground for the election contest is whether "... eligible voters who attempted to vote in accordance with the laws of the state were denied the right to vote." (Section 16100, subdivision (e) & section 16101, subdivision (d).) Another ground is whether election officials "made errors sufficient to change the result of the election ..." (Section 16100, subdivision (f).) (fn. 2.)

Since the media recount requests seek to discover how many eligible voters had their votes discarded, and whether those discarded votes could have changed the election, it's more clear than ever that the media are doing the legwork for an eventual legal challenge by Frye.(fn. 3.)

Frye was quoted on local TV tonight (Channel 10) as deciding between doing nothing or filing a legal challenge to the result "depending on the number of votes whatever that might be." In other words, she's waiting for the results of the recounts before deciding what to do next. Thanks to the media two decisions she doesn't have to make are whether to ask for a recount herself and how to pay for one.

It's more obvious than ever that this election is not over. Two questions come to mind. Shouldn't the media's recount costs be considered as campaign contributions to Frye? And when will Mayor Dick Murphy speak out against the media's actions?


(1) Cursory research of the California Election Code casts some doubt on whether a partial recount can be done to count only the invalid votes. Section 15620 provides that a multiple-county recount may occur in some or all of the counties but does not provide for a similar partial recount in a single-county election. Section 15627 gives the voter requesting a recount the option of deciding on whether the recount is by machine or by hand. Section 15630 permits examination of unvoted as well as voted ballots but is not clear on whether it permits a recount of only unvoted or uncounted ballots.

(2) Any election contest based on the invalid votes will be difficult since those votes were cast in violation of state law. The California Constitution guarantees that any vote cast in accordance with state law shall be counted. (Article 2, section 2.5.) A vote is defined as "...all action necessary to make a vote effective in any ... election, including but not limited to ... casting a ballot, and having the ballot counted properly ..." (Election Code, section 15702.) But the catch is that write-in ballots are counted as valid votes only if the oval before the name is darkened. (Election Code, section 15342, subdivision (a).)

(3) KNSD, one of the TV stations which requested a recount, originally did so on behalf of a Frye, Murphy and Ron Roberts voter. Their pretense of neutrality crumbled a bit today when they reported that the Murphy supporter withdrew after he realized the request he agreed to with KNSD would result in an election recount.


Newspaper claims no intent to overturn election with recount request.

Union-Tribune Reader's Representative Gina Lubrano devoted the bulk of her column today to the media requests for a recount in the San Diego mayoral election. Under the misleading headline "Why all the votes should be counted" Lubrano explains the reasons behind the Union-Tribune's request. (The headline is misleading because all the votes have been counted. Some ballots were not counted because voters did not follow the rules when they failed to darken an oval before writing in Donna Frye's name. See earlier "misteramericano" posts "Media acts to overturn election results in San Diego mayoral election" "Why is voting like pitching a baseball" and "What's a democracy without rules?" for more background on the controversy.)

Lubrano begins her column with two questions, "Who would have won if all the write-in votes for Donna Frye had been counted?" and "Although the count alone won't change the outcome, wouldn't you like to know?" Well, yes, it would be nice to know but the premise of the question is misleading. Pending further research into California's election law, let's take on faith at this time that the "count alone" will not change the outcome. Nonetheless, the recount may provide ammunition sought by Frye's supporters to overturn the election results. That point is made clear later in Lubrano's column by attorney Fred Woocher who is acting independently of the media on behalf of a Frye supporter. Woocher says he requested his recount so he "can decide whether to file a lawsuit asking that the disputed votes be officially tallied."

Moreover, the only mayoral candidate who is contemplating a recount with an eye towards challenging the election result is Frye. Thus, while saying it is acting without any intent to overturn the election or to assist any candidate, the newspaper is acting in support of Frye's candidacy.

The media's request at this time is misguided for another reason. Union-Tribue Editor Karin Winner is quoted in Lubrano's column as follows: "We believe it's important for Mayor Murphy to get on with solving San Diego's critical issues. At the same time, we believe the only way to truly bring this mayoral election to a close is to see that all the ballots --- bubbled or not --- are counted. It's for closure, not to get the election overturned."

Closure is the least likely outcome of this misguided venture.

The media's recount request is completely unnecessary since Woocher has already sought a recount. The media should stay out of this election. They should limit themselves to reporting on Woocher's recount request and whatever lawsuit follows. To do otherwise is to abandon neutrality in this election, which although the results are certified and Murphy has been sworn in, is far from being over.

Meanwhile, as of now Frye has not taken action to request a recount. Why should she when local media are doing the job for her?


P.S. Here's the latest news on when the recount will begin:


Saturday, December 11, 2004

Media acts to overturn San Diego mayoral election.

In an outrageous interference in an election, several local media organizations -- TV station KNSD, the newspaper San Diego Union Tribune, and a consortium of other media outlets -- have asked for recounts in the San Diego mayoral election. By doing so, these organizations are taking sides in the election, whether they intended to or not, and are acting to overturn the election.

KNSD appears to be trying to maintain neutrality because it filed its request on behalf of three voters who supported each of the three candidates. Yet only one candidate, Donna Frye, is contemplating a recount, and only Frye stands to benefit from the recount. Neither Dick Murphy nor Ron Roberts are seeking a recount. The election has already been certified, Murphy declared the winner and sworn into office. So KNSD's attempt at neutrality fails. The Union-Tribune and the consortium filed their requests on behalf of specific Frye voters so there is no pretense at neutrality in their actions.

Worse than this, these recount requests are being filed by the organizations in an effort to have the illegal votes for Frye be counted. (See "What's a democracy without rules" below for explanation of the illegal votes.) Thus, not only are these organizations taking an action on behalf of a particular candidate in the race, they are also seeking to have votes which weren't cast according to the rules added to that candidate's total, possibly overturning the election result and ousting Murphy from office.

This is an outrageous and unnecessary interference in the election by local media. It's outrageous because the media are taking sides in an election and are now parties in a dispute over what constitutes a legal vote. They are no longer merely reporting the news they are making the news. It's unnecessary because a recount request has already been filed by a Frye supporter. The proper role of the media should be to report on that independent recount request and on the recount itself. It is not their role to request the recount and possibly affect the election result.



Friday, December 10, 2004

How is voting like pitching a baseball?

The premise underlying every Democratic attempt to undermine the election results in recent years has been that every vote cast is a vote, whether the vote violates an election rule or not. The rules don't matter, what matters is counting every vote. But is an illegally cast vote a vote? We get many of our notions of fair play in competition from sports. Baseball is America so let's look at baseball for guidance.

Voting is like pitching a baseball. A pitch only counts if it is thrown legally. A pitcher who balks but still throws the ball over the plate hasn't thrown a legal pitch. The pitch is not called a strike and the count remains the same. The pitcher doesn't get a "do-over" either. Instead, the runners advance one base on a balk so when the pitcher throws his next pitch the count is the same but the game situation is different. Worse in fact. The umpires make the judgment call on whether a balk occurred. The pitcher's manager can argue with the umpire to get the call reversed on the ground that no balk occurred but he can't argue with the umpire to reverse the call because it's unfair not to count every pitch.

Voting is the same. The voter casts a vote and if it was done legally it gets counted; if it wasn't, it doesn't. Just as it's unfair to argue a balked pitch should count as a valid pitch it's unfair to argue an illegally cast vote should count as a legal vote.



Thursday, December 09, 2004

What's a Democracy without rules - Washington State?

It's not just San Diego where Democrats are waging a campaign to ignore the electoral rules because they are unhappy with the election result. In Washington State, where the Democratic candidate for governor lost to the Republican twice, once in the normal count and again in a mandatory machine recount, the Democrats will argue before Washington's Supreme Court on Monday that invalid votes should be counted for their candidate during a hand recount.

The Democrats' argument goes something like this: The right to vote is fundamental; some provisional and absentee ballots were rejected by local election boards because the signatures on the ballots did not match the signatures on the voters' registration; Washington State's law that provides such ballots shall not be counted is preventing every vote from being counted; therefore, the rejected ballots should be counted.

Sound familiar?

Once again Democratic voters have shown themselves unable to vote properly. And once again their party is challenging the validity of an election by arguing that electoral rules should be ignored so that "all the votes are counted." Just another round of undermining democratic government in the name of democracy.


Wednesday, December 08, 2004

What's a Democracy Without Rules?

The genius of this nation's governing documents is that they set out a legal and clear method for the peaceful succession of power from one government to the next. We've had over 200 years of peaceful transfers of power and one of the reasons for that is everybody buys into the rules and the electoral system. When one party in this country demonstrates that it will not respect the election rules if it doesn't like the result, it undermines respect for elections themselves and threatens our democratic form of government. Here's the latest:

San Diego has a newly elected mayor, the incumbent Dick Murphy, but the loser, Donna Frye, is considering whether to challenge the election results because as she says, "... all of the votes cast were not counted."

Does this sound familiar? Anybody care to guess which parties Murphy and Frye represent in this non-partisan election. Yes, once again, a Democratic candidate is about to challenge the results of an election because her voters were unable to figure out how to vote properly. For a party that has made hay the past four years by mocking the intelligence of Republicans in general and George Bush in particular, Democrats seem to have a rather large base of supporters who can't figure out how to vote. In 2000, it was Florida Democrats who couldn't follow arrows on a butterfly ballot to vote for the right person. In 2004 it's San Diego Democrats who can't follow directions on how to cast a write-in vote. Frye's supporters claim there were several thousand "votes" cast for Frye that aren't being counted because the voters didn't vote properly. California law requires voters to darken an oval next to a candidate's name or the write-in line. Apparently, some of Frye's supporters failed to darken the oval before writing in her name. This, after Frye told her supporters repeatedly while campaigning how to vote correctly. Just which party is the stupid party here?

But this isn't really about who has the dumbest voters, as interesting as that topic might be. No, this is about a lamentable trend in this country of subverting democratic government in the name of democracy. The trend started in 2000 when Al Gore tried to steal the election by arguing that improperly cast votes should be counted in his favor. It continued in 2002 when the New Jersey Democratic Party replaced their Senate candidate after the deadline had passed to place a candidate on the ballot. It continues today in San Diego where an insurgent candidate has run for mayor even though the City Charter appears to prohibit her write-in candidacy and is threatening to overturn the election results by arguing that improperly cast ballots should be counted as votes.

Frye entered the mayoral race after the primary election had narrowed the field to two candidates, Murphy and Ron Roberts. These two candidates are from the Republican Party, are established local politicians, and had faced each other four years before. So the city was being offered more of the same.

In a city that has become more Democratic over time and has gone through some of the worst scandals of its history recently, the situation was ripe for an alternative. Enter Donna Frye, a councilmember who is far from Republican and far from establishment. Before public life she ran a surf shop and she got involved in local politics through environmental activism. She entered the race as write-in candidate, was welcomed into the debates, and finished second just behind Murphy by about 2,000 votes. An incredible performance for a write-in candidate.

But here's the problem. Frye's candidacy might not have been legal. Turns out San Diego's City Charter says that the general election shall have only two candidates, the two highest vote getters from the primary, and that only those two candidates' names shall be printed on the ballot. Yet San Diego's municipal code permits write-in candidates even in the general election for mayor. No court has ruled yet on whether the Charter truly does bar write-in candidates or whether the municipal code provision violates the Charter's apparent prohibition. However, the Court of Appeal that just yesterday turned aside a legal challenge brought by a Roberts supporter, described the Charter provision as being even more restrictive than a San Francisco Charter provision that was recently upheld as a constitutional bar to write-in candidates. (

So, here's the situation we're facing in San Diego. A likely illegal candidate is threatening to overturn the results of an election by claiming that illegal votes cast for her should be counted. All this in the name of democratic government?

But what kind of democracy is it that doesn't follow the rules? Our country was founded to be a nation of laws not of men. The tactics followed by Democrats in recent elections turns that formulation on its head. To them it doesn't appear to matter what the laws are, what matters are the results. That's the lesson of Florida 2000, New Jersey 2002, and San Diego 2004.

There is a very real danger to our democratic form of government from this trend. Democrats have spent the last four years undermining the legitimacy of Bush's presidency. They've done that by, among other things, claiming that he stole the election in Florida, that he was "selected" not elected by the United States Supreme Court, and that the Electoral College is an anti-democratic anachronism. Their repeated challenges to election results is undermining the legitimacy of the electoral system. Ironically, by persisting in challenging election rules in the name of democracy, Democrats are laying the foundation for some party some day to throw out all the rules and establish the dictatorship they fear.



Monday, December 06, 2004

Mister Americano Goes to the Movies: Closer

In the Era of Asymmetrical Warfare, of terrorism, of dirty warriors, Mike Nichols' "Closer" is a love story for our time, a movie that portrays love as a combat for affection. Clive Owen, Natalie Portman, Julia Roberts and Jude Law play four strangers who fall in and out of love with each other.

Early on, Larry (Owen, who reigns supreme in this movie) says of his rival Dan (Law), "I could have him. ... in a scrap." Larry, brutally honest but with the morals of a thug, recognizes the combat to follow and plays his part with relentlessness and brutality. Yet he never confronts his enemy straight on. Instead, he lays landmines of brutal truth that he knows will destroy his opponent. Dan, who wants Anna (Roberts) but is with Alice (Portman), is completely outgunned in this combat until finally he is denied even Alice by Larry's indirect combat.

But what about the women? Anna is an enigma. In her first appearance she seems a strong woman with character who stands up for herself. But over time she appears to lose that character and strength and goes in whichever direction the wind is blowing strongest. It's hard to comprehend her motivations in bouncing from Larry to Dan and then back again. Perhaps she is simply the prize, which seems a cruel fate for this character because between the two women, she is the accomplished one.

Alice, on the other hand, is nobody's prize and that's exactly how she wants it. She survives by telling lies, lies, and more lies. In fact, she lies so much and so well, that when she finally tells a truth, it's taken as a lie. But most important, she survives by keeping men just outside her own personal emotional space. This far and no closer is her rule, and once a man tries to get within that space, she's done with him and moves on. It's no wonder she's a stripper, an occupation of total and complete deception where the women are never what they present and the intimacy is completely false. She moves through life unchanged by others. We see her at the beginning and the end of the movie walking down a sidewalk, cutting through the crowd the way a duck glides across the water: parting the water, leaving a wake, but never getting wet.

Throughout the movie the audience is left wondering about the motivations of these characters. But understanding is undermined by the moviemaker's storytelling technique. The story is told in scenes of revelation and conflict separated by long stretches of time. It is in those long stretches not shown on screen where the relationships develop and crumble. All we ever see are the beginnings and the ends, the moments when the partners are at their most distant from each other. Ultimately, that doesn't matter because this is not a movie about intimacy, it's a movie about closing the deal.

The lesson of "Closer," for men anyway, is that love goes to the man who knows what he wants and fights the dirtiest to get it. As a friend of mine once told me, "Sometimes ya gotta kick a little ass to get things done." For women, perhaps it's a cautionary tale. I don't know. Or maybe it's merely descriptive. What I do know is this is Clive Owen's movie, and this movie about Larry, is "Closer" with a Z not an S.


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