Smith Planning to Challenge Absentee Ballots Statewide

Democratic state attorney general candidate Arlo Smith on Friday dropped his court battle to halt the count of more than 50,000 absentee ballots in Orange County.

But Smith, who trails Republican Dan Lungren by just under 10,000 votes out of more than 7 million cast statewide, said he is still determined to pursue a legal challenge of more than 500,000 absentee ballots from last week’s election.

“Instead of litigating it twice, we’re going to litigate it once,” said Smith’s campaign manager, Marc Dann.

The Smith campaign has charged that the Republican Party may have improperly submitted applications for absentee ballots on behalf of voters. To remedy the situation, Smith’s attorneys will ask at a hearing scheduled for Nov. 30 that most absentee ballots be invalidated, an action that would apparently turn the election in favor of Smith.

On Friday, an Orange County Superior Court judge, acting at Smith’s request, lifted a temporary restraining order that prevented Orange County Registrar of Voters Donald Tanney from counting absentee ballots unless his office specifically checked for fraud in the applications for absentee ballots.

After the hearing, Tanney said he would begin processing the ballots immediately without the anti-fraud safeguards sought by Smith.

The count, which is expected to add to Lungren’s lead, is likely to be concluded on Tuesday.

Smith’s attorney, Allan H. Stokke, told reporters that Tanney’s actions are “clearly contrary to the Election Code.” But rather than fight Orange County specifically, Stokke said, a more expansive lawsuit against Secretary of State March Fong Eu’s office would be more productive.

Stokke said the Smith suit would rely on a court affidavit filed this week by Eu’s elections division chief which acknowledges that her office advises county registrars across California not to bother comparing the signatures on absentee applications with those on returned ballots or on voters’ original affidavits of registration.

Smith, the district attorney of San Francisco, had led Lungren, a former five-term congressman, by almost 29,000 votes when the statewide absentee ballot count began. But Lungren steadily closed the gap, passing Smith on Wednesday and declaring victory on Thursday.

Smith has refused to concede and is considering an unprecedented statewide recount if the margin remains close.