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.

-tdr