Smith Loses Last Bid to Overturn Lungren’s Election


The California Supreme Court on Friday rejected a last-ditch attempt by Democrat Arlo Smith to overcome his narrow election loss and prevent Republican Daniel Lungren from taking office Monday as attorney general.

The court voted 5 to 1 to deny Smith’s request for an emergency hearing in his challenge to more than 1.4 million absentee votes cast in 37 counties, including Los Angeles, Orange and San Diego.

Friday’s action came in a brief order signed by Chief Justice Malcolm M. Lucas. Only Justice Allen E. Broussard voted to grant review of the case--three votes short of the number required. Justice Stanley Mosk did not participate.

Lungren, a former Long Beach congressman, edged out Smith, the district attorney of San Francisco, by only 28,906 ballots out of more than 6.7 million votes cast in the Nov. 6 election.


Smith had held a narrow lead in votes cast Election Day. But as the absentee vote was processed, Lungren moved in front and later claimed victory. Smith, however, never conceded defeat--and held out hope until Friday that he could gain office by challenging the votes that gave Lungren the victory.

In a statement issued in Sacramento, Lungren welcomed the high court’s action, calling it a victory for absentee voters “whose right to participate in the democratic process was threatened repeatedly by Arlo Smith and his supporters.”

At a news conference in San Francisco, Smith said he was “obviously disappointed” by the court action, but added that he had telephoned Lungren and offered his congratulations on his victory. “This ends a close and hard-fought race for attorney general,” he said.

The Democrat said that in coming months, he will stand by to “remind” the new attorney general of his duty to defend civil rights--including the state constitutional right to abortion--and to protect consumers and the environment.


Smith also credited Republican political strategists for their aggressive efforts to get out the vote Nov. 6. “If the Democrats had done half the job the Republicans did, I would have been elected in a walk and (gubernatorial candidate) Dianne Feinstein would probably have been elected,” he said.

Lawyers for Smith supporters filed suit Dec. 17 in the high court against Secretary of State March Fong Eu, contending that her office failed to require county officials to verify the absentee-ballot application signatures by comparing them with signatures on voter-registration rolls.

The Smith forces said this created the possibility that fraudulent applications might be used for absentee ballots in 37 counties. The suit asked the justices to intercede before Lungren was to be sworn into office Monday and to annul the contested ballots, which accounted for 96% of the total absentee vote.

In reply, attorneys for Eu urged the court to reject the bid to invalidate the ballots, saying such action would unfairly disenfranchise more than 1 million Californians who cast absentee votes in good faith. Smith, Eu noted, had failed to introduce any evidence of actual ballot-tampering or fraud.