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?

-tdr

(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.