After the ruling by the 4th District Court of Appeals allowing his certification as mayor of San Diego for a second term, Dick Murphy hailed "another defeat for the obstructionists who have attempted to frustrate the will of the voters." Yet the will of the voters remains frustrated by the election laws and decisions that have brought us to this point. The result is a gross miscarriage of democratic justice.The fundamental problem is that under no likely outcome will the preferences of the electorate be meaningfully represented by the occupant of the mayor's chair for the next four years. Nonetheless, that mayor will obtain significant new powers as a result of the passage of Proposition F, the strong mayor initiative, by a slim majority.
Murphy won barely over a third of the votes, by a margin of less than one-half of 1 percent. This margin is about half the number of uncounted ballots that may bear the clear intention of voters to select Councilwoman Donna Frye (despite their not having darkened the adjacent oval). A plurality for either of these candidates may not reflect the majority's will. Indeed, it is even possible that third-place finisher Ron Roberts would have been the preference of a majority in a two-way race.
The existence of the runoff provision reflects a recognition of a basic fact: In plurality elections with three or more equally strong candidates, we cannot determine what a majority intended. Did a majority intend to oust the incumbent? Plausibly, given that nearly two-thirds of voters chose one of Murphy's two challengers. Murphy's percentage in the general election (34.7) had also decreased compared to the primary (40.3) with nearly double the turnout and after months of news about the city's growing financial crisis.
However, given the three-candidate race, we can only speculate about the real majority preference; it essentially depends on whom Roberts' voters considered their second choice. If, for example, at least half of these voters identified themselves more as Republicans than as anti-Murphy, their votes would have given Murphy a majority. If, on the other hand, just over half saw themselves as primarily anti-incumbent, Frye would have won the majority. This is the reason the city charter requires a runoff in the first place.
Of course, the crux of the argument over whether Frye's candidacy was legal in the first place is the ambiguity of the city charter and municipal code. The charter says that the top two vote-getters from the primary "shall be the candidates, and only candidates, for such office" – an unnecessary emphasis if the intent had not been to prevent the runoff from becoming a plurality race.
The very next clause refers to the two candidates whose names "shall be printed upon the ballots." This clause appears to open the door to write-in candidates. Indeed the more recently revised municipal code makes no exceptions for runoffs in allowing for write-ins. The code thus implicitly acknowledges that conditions arising after the primary – such as last summer's revelations of financial problems at City Hall – might arise that justify the late entry of a write-in candidate.
Given the trickiness of these legal questions, it is no surprise that the 4th District chose to sidestep the critical questions. Its ruling boils down to two narrow points: first, that the challenge to Frye's eligibility should have been filed before the election and, second, that only if the winner of the race is ineligible might a remedy be available. This latter point is remarkable.
Dismissing the possibility that there were any constitutional issues to consider in the case before them, the three justices said that allowing challenges to the eligibility of losing candidates would "undermine the stability of most elections."
The court chose to look away from the obvious fact that Frye was not just any losing candidate. Her presence in the race not only may have determined its outcome, but it did so under ambiguous legal standing. Moreover, Frye is a "loser" who could yet be found to have the most votes in the event of a challenge that forces the scrutiny of ballots with undarkened ovals.
If Frye's candidacy was legal – a question the court explicitly declined to consider – the implication is that a plurality is sufficient to elect the mayor after all. If that is the case, then why require a runoff in the event no candidate obtains a majority at the primary? Of course, the reason is precisely that multicandidate plurality races may fail to reveal the voters' will.
So, unless a subsequent court ruling requires a new election to discover the majority's will, the city will spend the next four years with a mayor – soon to acquire new powers – who does not represent the majority. Of course, if a majority intended to oust the incumbent, the option of a recall still exists to reveal that will. The municipal code allows a recall after a mayor has been in office for six months. Should a recall occur, here, at last, the code is explicit: It says that the candidate with the most votes wins, even if it is not a majority.
Obviously, reconciling the many contradictions in election law must be a priority for the next council, and for the newly strong mayor, whoever he or she may be.
Shugart is a professor at the Graduate School of International Relations and Pacific Studies at the University of California San Diego. Carroll is a graduate student in political science at UCSD. 