The incumbent mayor, Dick Murphy, will be reelected unless one of the three lawsuits currently pending is successful, or unless there is a recount that will lead to a different result. News stories on the end of counting showing Murphy in the lead are here and here.
I have already blogged about two of the lawsuits, which seek a revote on grounds that the San Diego city charter prohibits write-in candidacies. I think the state court judge was right that this suit should be barred by laches, and the state case is now going up on appeal. A federal district court judge is hearing a parallel suit in a hearing Nov. 30.
The other lawsuit is quite interesting. According to the press reports, there may be as many as 4,000 or 5,000 votes for Donna Frye, the write-in candidate, where voters wrote in Frye’s name on the ballot but they failed to fill in an oval bubble next to the write-in space. The League of Women Voters want those votes counted. Elections officials won’t count them because of California Elections Code section 15432, subd. (a), which states:

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:
(a) For voting systems in which write-in spaces appear directly below the list of candidates for that office and provide a voting space, no 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.

The rules for casting a vote told voters to “completely darken the oval next to” the written name of the write-in candidate.
The League raises a few arguments, some stronger than others.
1. The absentee ballot instructions did not indicate that the oval must be filled in. I had looked at those “1-2-3 instructions” the other day on the San Diego Registrar’s website, but they seem to have been taken down. According to the League, the instructions did not say anything about darkening in the oval when one wished to vote for a write-in candidate. So one argument—and this appears to be the strongest one–is that it does not violate the California Elections Code to count the absentee ballots cast for Frye without the oval filled in, because those ballots in fact were cast in accordance with the instructions. The New Jersey Supreme Court apparently ruled that write-in votes should be counted under similar circumstances. (See here.)
If the judge agrees, it may be impossible at this point to know which were the absentee ballots cast in this manner, creating a difficulty in the remedy. Should all unbubbled write-in votes count? Only part? How many?
2. The League also argues that there is no rationale for the bubble requirement in this election. It can serve an administrative convenience purpose (it would be easier to find the write-in ballots) but the ballots in this case have already been sorted by hand. The real question is whether to ignore the rule as written. This presents a typical issue of the choice between following the rules as written and folloing the intent of the voter. We know in Florida, for example, that ballots where a voter both punched (or bubbled) a vote for Gore and wrote in Gore were not counted. Few argued that they should be. [UPDATE: My recollection here is at least partially incorrect. See here and here.) If the instructions are clear (but see point 1), there’s a stronger fairness argument in favor of following the ex ante rules.
3. Relatedly, the League argues that not counting the votes violates equal protection under Bush v. Gore and the California constitution’s guarantee that all votes cast in accordance with the state’s laws shall be counted. I don’t see this as adding much to the argument. If the rules were not followed, then the state Constitution doesn’t require the counting of the votes. And even under the broadest reading of Bush v. Gore, I haven’t heard anyone argue that the intent of the voter should be followed even if it violates state law. So the question returns to those absentee ballots. If the instructions were not clear, then those votes without bubbles arguably were cast in accordance with the voting instructions and should be counted.
Finally, there is a laches issue, as arose in the last suit. We know that Frye’s attorneys and I believe others complained to elections officials about the bubble rule in advance—but when rebuffed by city officials, they did not seek judicial relief.
Murphy’s lawyers exercised a peremptory challenge against the judge scheduled to hear the case (the same state court judge that ruled in the first case that write-ins should be counted). I do not know who will hear the case Monday, but all the Superior Court judges in San Diego have been disqualified to avoid the appearance of a conflict of interest; Murphy is a former Superior Court judge.