Night of the Living Dims: The City Attorney Speaks

According to today's San Diego Union-Tribune (linked in the title above) City Attorney Michael Aguirre has issued his office's unsolicited opinion on San Diego's mayoral election fiasco. His opinion comes to the sensible conclusion that votes cast in violation of California state law don't count. Like any lawyer he qualifies his opinion. Here by suggesting that the failure to count the disputed write-in votes may violate the voters' constitutional rights. The trouble with that view, however, is that a voter doesn't have a constitutional right to have their vote counted if it is not cast in accordance with state law. (Cal. Constitution, Art. 2, Sec. 2.5 and see here.)

The attorneys who have filed suits on behalf of Donna Frye's supporters understandably dispute Aguirre's conclusions. Both attorneys argue that city law trumps state law in a city election and since city law would not disqualify the disputed write-in votes Aguirre is wrong. The problem with their analysis is that San Diego's City Charter bars write-in candidates in the general election for mayor. Relying on city law is a dead end because an honest decision under that law would result in Frye's candidacy being declared invalid.

But a victory in court is no longer what is driving the post-election challenges. If it were, the losing candidate would have filed a suit herself. While Frye has not filed any suit, and says she has no involvement with the litigation, she has not conceded the election. She also refused to certify the election results when the City Council voted to certify them. And she continues to make statements that undermine the legitimacy of the election. For instance, the one she made in the Union-Tribune article: "What I will say is what I have said all along, that all the votes should be counted."

Frye's position is one that resonates politically with many voters regardless of its weak legal basis. Moreover, although Mayor Dick Murphy's legal standing as the mayor is strong, his political standing is not.

Thus, the political tactic in play now appears to be to cast doubt on the election results and Murphy's legitimacy by playing out the weak legal hand for as long as politically possible. The goal of this tactic is to set up a recall election sometime in the middle of 2005.

Murphy's playing this game with half a hand. He's pursuing a strong legal strategy but he's not playing politics at all. If he were, he'd be doing more to undermine Frye's political standing and strengthen his own. With all the problems facing the city this year, and with Murphy not playing any PR hand, Frye has a very good chance of successfully recalling the mayor and getting herself elected to succeed him.

-tdr