Smith Asks Court to Throw Out Most Absentee Ballots : Election: Losing candidate for attorney general claims signatures were not checked. If judge agrees, it would make the Democrat the winner over Republican Lungren.

Attorneys for Democrat Arlo Smith demanded in court Friday that virtually all absentee ballots cast statewide in last month’s exceedingly close election for state attorney general be invalidated--an action that would result in Smith defeating the apparent winner, Republican Dan Lungren.

No ruling was issued at the hearing before Orange County Superior Court Commissioner Ronald L. Bauer.

Smith’s lawyers charge that secretary of state employees provided incorrect guidance to local ballot counters. They contend that about 1.4 million absentee ballots already tabulated are tainted because no precautions were taken to protect against possible fraud.

Smith campaign manager Marc Dann, representing the San Francisco district attorney, told Bauer that his boss was “shocked and surprised” when he discovered after Election Day that balloting officials in most counties had not compared signatures on the ballots with those on the absentee applications. State law requires that mail-in voters apply for their own absentee ballots.

Although he was unable to provide examples of cases in which the law was violated, Smith attorney Merrick S. Rayle asked Bauer to throw out all absentee ballots.

Republican Party attorney John Mueller, emphasizing the lack of specific cases, countered that the lawsuit amounts to nothing more than “creative lawyering.”

“There’s not one shred of evidence of any fraud,” Mueller told Bauer. “They’re asking essentially to use a nuclear warhead when they haven’t come up with any evidence at all that one vote was cast improperly in this state.”

Also arguing against the lawsuit was a legal representative of Secretary of State March Fong Eu’s office.

On Election Day, Smith won more votes than former five-term congressman Lungren. Smith’s lead of almost 29,000 votes dwindled with the county-by-county tabulation of absentee ballots, which traditionally tilt toward Republican candidates.

If the judge agrees with Smith’s challenge, almost all absentee ballots would be thrown out, except for those from a handful of small counties that had properly compared signatures on the ballots with those on the applications.

Current unofficial results from the secretary of state’s office show Lungren leading by 29,242 votes out of more than 7 million cast--a margin of 46.8% to 46.4%. By comparison, Gov. George Deukmejian defeated Los Angeles Mayor Tom Bradley by 93,345 votes eight years ago in this century’s closest race for California governor.

The secretary of state’s office is scheduled to certify the November election results by Dec. 15.

Bauer said he would prepare a report and recommendations for Superior Court Judge Francisco F. Firmat, who will render a ruling.

If Firmat decides against Smith, Dann said that the San Francisco prosecutor will “definitely” appeal to the state Court of Appeal.

Dann added that Smith is not likely to demand a recount because of the slim chance of catching up and the prohibitive costs. State election officials have estimated that an unprecedented statewide recount could cost Smith $2 million--a fee that would be refunded only if he was declared the winner.

Meanwhile, Lungren, who has declared victory in the race, is “proceeding with the transition and setting up the festivities that will surround the administration of the oath of office in January,” said Lungren spokesman Dave Puglia.