Judge Rejects Challenge to Absentee Votes : Election: Ruling affirms Republican Dan Lungren as narrow winner of race for attorney general over Democrat Arlo Smith.


An Orange County judge Monday denied Democrat Arlo Smith’s last-ditch effort to invalidate more than 1 million absentee ballots crucial to last month’s election for state attorney general, which GOP candidate Dan Lungren won by a scant 0.2% margin.

The decision removes the last cloud hanging over Lungren’s apparent victory in time for the secretary of state’s certification of the election, scheduled for Dec. 14.

Smith’s lawyers had charged in a lawsuit that the secretary of state’s office provided incorrect guidelines for absentee-ballot processing to counties throughout the state. They contended that a majority of the state’s 1.4 million absentee ballots were tainted because local election workers had not verified signatures on applications for the ballots, leaving open the possibility for fraud.

Superior Court Judge Francisco J. Firmat agreed that there had been violations of state election laws, but none serious enough to warrant overturning the result.


“We recognized from the outset that it was a groundless suit,” said Lungren press secretary Dave Puglia. “It’s obviously nice to have it gone, but it didn’t delay our transition effort.”

Smith, the San Francisco district attorney, was unavailable for comment. Merrick S. Rayle, a lawyer for the Smith campaign, said he would seek reconsideration in the same court and appeal if his plea is denied.

“We agree with the court that there has been a violation of the law,” Rayle said. “We disagree with everything else the court said.”

Republican Party attorney Darryl R. Wold, of the Costa Mesa firm of Reed & Davidson, said it was time for Smith to concede.

“The fair expression of the popular will is that Mr. Smith did not win, and it’s time he recognized that,” Wold said. “The court concluded that you just can’t disenfranchise 1.4 million voters who thought that they properly voted their absentee ballots . . . I have no doubt that a court of appeal would reach the same decision.”

In his nine-page decision, Firmat agreed that there had been “a technical violation” of the state Elections Code. But he also said that the code requires that absentee ballot provisions “be liberally construed in favor of the absent voter,” and since the Smith campaign had not produced any evidence of fraud, the election result should be upheld.

“There was no evidence of factual errors that had even the most minimal effect on the outcome of the election,” Firmat wrote. “Voiding of these challenged ballots would disenfranchise several hundred thousand blameless voters.”

Firmat also cited a number of technical deficiencies in the lawsuit itself as grounds for its dismissal, but Wold said those problems wouldn’t have been fatal if the lawsuit had any merit.


The decision was a mixed bag for Secretary of State March Fong Eu, who defended her absentee ballot policies in court.

Tony Miller, Eu’s chief deputy, said that the secretary of state’s office does not plan to issue new directives in light of Firmat’s ruling that election laws were violated. But, he said, it might seek clarification of the laws from the Legislature.

“We disagree with the court in that regard,” Miller said. “But the bottom line is that the court is carrying out the will of the electorate. This is a victory for the nonpartisan carrying out of elections. A Democratic secretary of state is upholding victory by a Republican. . . .”

Had Smith’s challenge been upheld and the absentee ballots thrown out, he would have regained the lead he held on Election Day over Lungren, a former five-term congressman from Long Beach. As the heavily Republican absentee ballots were counted after the election, Smith’s lead of about 30,000 votes dwindled and ultimately turned to a similar-sized margin--out of more than 7 million cast--for Lungren. Current unofficial results show Lungren leading 46.8% to 46.4%.