As of Monday morning, two Democratic candidates were locked in a statistical tie for the second spot in the November run-off, with another candidate very close behind. Board of Equalization member Betty Yee was 351 votes ahead of  Assemblyman John A. Perez – 751,691 to 751,340. That’s a lead of 0.0001 percent.

Both have 21.7 percent of the 3.5 million votes counted for far. Each hold a slim lead over longshot GOP candidate David Evans. He has 740,576 votes, or 21.3 percent.

Republican Fresno Mayor Ashley Swearengin is comfortably atop the field after running up the score in her hometown. Under California’s top two primary system, two Republicans could make it to the November runoff, leaving the state’s 7.7 million Democrats without a candidate.

Too close to call: 926,000 ballots yet to be counted

But before Republicans pop the champagne, election officials must review 926,069 unprocessed ballots, including nearly three-quarters of a million late absentee ballots. With so many ballots left to count, it’s anyone’s race to win. After all those late absentee and provisional ballots are counted, more likely than not, the race will remain as close as it is today.

That’s because the counties with the most unprocessed ballots are almost evenly split among the three candidates. And those top six counties account for roughly 54 percent of all unprocessed ballots statewide. In Perez’s favor, Los Angeles County continues to hold the largest cache of unprocessed ballots, where he bested Yee by 5 percent. Yee did better in Bay Area counties, which are a combined equivalent to Los Angeles.

California recounts: A short history

In 2011, California Watch’s Lance Williams scoured the archives, maintained by Dave Leip’s online atlas, and compiled the state’s definitive history of close elections.

The closest statewide candidate race occurred in 1990, when former Republican Rep. Dan Lungren defeated San Francisco District Attorney Arlo Smith, a Democrat, by 28,906 votes to become attorney general. According to Williams, Smith considered a recount of the 0.39 percent margin of victory.

Lungren’s “landslide” win wasn’t the closest election in the modern era. According to Williams, a 1988 transportation bond measure, which was supported by Gov. George Deukmejian, lost by 355 votes — out of more than 5.2 million cast. That’s a 0.006 percent margin of victory.

In both of those close contests, the losing side did not request a recount, and according to California Watch’s 2011 research, there had never been a statewide recount in California’s history up to that point.

The following year, California experienced two recounts in statewide propositions. In July 2012, a Bay Area surgeon requested a recount for Proposition 29, a $1-per-pack cigarette tax increase that was defeated by voters. In December of that year, a recount was requested for Proposition 37, a food labeling initiative that was also defeated.  Neither outcome changed with the recounts.

Could the current race for controller, which might be decided by a fraction of a percent, be the very first recount in a statewide candidate race?

Get ready for a recount

Odds are there will be at least a partial recount. Under California’s Election Code, Section 15620:

“If an election is conducted in more than one county, the request for the recount may be filed by any voter within five days, beginning on the 29th day after the election, with the elections official of, and the recount may be conducted within, any or all of the affected counties.”

The key wording: “The recount may be conducted within, any or all of the affected counties.” That means that if the current margin holds, it’d be in the best interest of both losers to request targeted recounts in a select group of counties.

Democrats hold recount advantage

The biggest obstacle to a possible recount is financial — the requester foots the bill. Consequently, Perez, who raised the most money in the primary, is more likely than Evans, who spent less than $1,000 on his campaign, to have the financial means for a recount. Yee, too, could likely raise cash from her supporters to pay for a recount. She’d remain the highest-ranking Asian woman in California if elected as the state’s CFO.

Either way, with two candidates and unlimited party resources, Democrats have the advantage in almost every possible recount scenario, but one.

If one Democrat makes it into the second spot once the results are final, will California Democrats allow the loser to request a recount and thereby risk delivering victory to Evans?

Yee’s 351-vote lead over Perez is microscopic in an election involving millions of votes. If that margin remains even close to the same after the remaining ballots are processed, this race ain’t over even when it’s over.

By John Hrabe

National Journal’s The Hotline released its first list of the most competitive U.S. House of Representatives races for the 2012 cycle. These are the 75 seats that National Journal considers “most likely to change hands in November.”

Interesting observations about the rankings:

* California, the state with the largest congressional delegation, had 10 districts make the list, the most of any state.

* New York’s nine races to make the list received a more competitive score. If the states are ranked on a scale of the races, from one to 75, New York races averaged 40.44, compared to 52.2 for the Golden State.

* Three California races are listed in the Top 30: the re-election campaigns of Republican Congressmen Dan Lungren and Brian Bilbray as well as current Republican State Sen. Tony Strickland’s campaign against Democratic Assemblywoman Julia Brownley for the open Ventura County seat in the U.S. House.

The Hotline’s rankings differ slightly from The Nooner’s “12 Most Interesting Congressional Races,” published by Scott Lay at AroundtheCapitol.com. The Nooner’s list included intra-party feuds, whereas National Journal ranked seats most likely to change party hands.

Rankings don’t really mean much to voters. However, they can influence the party congressional committees and PACs, especially as they decide where to allocate national resources. Based on both rankings, expect Bilbray, Strickland and Lungren to be first in line for major national funding.

The races that made Hotline but not the Nooner are: the 3rd race between Democratic incumbent John Garamendi and Republican Colusa County Supervisor Kim Vann; the 36th race between Republican incumbent Mary Bono Mack and Democrat Raul Ruiz; and the open 47th race between Republican Gary DeLong and Democratic State Senator Alan Lowenthal.

Here’s how National Journal summarized these races.

* CD-3 is a Democratic district held by Democratic Rep. John Garamendi. Almost three-fourths of the district is new to him, but Garamendi’s 52 percent showing in the June all-party primary was a good sign. In previous years with that system, Democrats almost always improved on their primary percentages in November.

* CD-36 is a Republican district held by Republican Rep. Mary Bono Mack. Her diverse inland seat has long captured Democratic imaginations, and she only got 52 percent of the vote in 2010. This year, she’ll have to battle presidential-year Hispanic turnout marshaled by Democrat Raul Ruiz, but the seat got slightly more Republican.

* CD-47 is a new Democratic district. Republicans like Gary DeLong, but presidential year turnout in Long Beach makes victory a tricky proposition, though he has a better opportunity than if the seat were filled by an incumbent Democrat.

Other races

The races on the Nooner’s list that didn’t make National Journal’s radar:

* CD21: a Republican leaning Kings County seat, featuring Democrat John Hernandez vs. Republican David Valadao.

And California’s four intra-party feuds. Because of the new Top Two system, the November runoff features two rivals from the same party:

* CD-8  is a Republican seat in San Bernardino County, pitting two Republicans against one another: Paul Cook vs. Gregg Imus.
* CD-35 is a Democratic seat in Ontario, setting two Democrats against one another: Joe Baca vs. Gloria Negrete McLeod.
* CD-31 is a Republican seat in San Bernardino County featuring two Republicans, Bob Dutton vs. Gary Miller.
* CD-30 is a Democratic seat in San Fernando Valley with the Democratic rivals being Howard Berman vs. Brad Sherman.

While the intra-party feuds won’t affect which party controls the House in January, they could affect the partisan makeup of California’s state legislature.  CalWatchDog.com first reported on how the outcome of the 35th congressional race could determine whether Democrats gain two-thirds control of the state Senate. As an even-numbered state senator, Negrete-McLeod would need to resign her senate seat in order to be sworn in as a member of Congress, thereby leaving her senate seat vacant until filled by a special election.

State Sen. Juan Vargas, another even-numbered Democratic congressional candidate, is almost guaranteed to win this November. His victory would create at least one state Senate vacancy.

In the state Legislature, tax increases are subject to a two-thirds vote requirement, a threshold unaffected by vacancies.

By Dave Roberts

In California, there are three certainties: death, taxes and the re-election of Sen. Dianne Feinstein. In 2006, she shellacked Dick Mountjoy by 24 points. In 2000, she trounced Tom Campbell by 19 points.

The grande doyenne of California Democrats has been in the Senate for 20 years and will turn 79 next month. She’s up for re-election and, short of serious illness or death, it’s likely she’ll still be in the Senate when she’s 85 and 91 if she wants.

So it’s not exactly a shock that prominent Republican congressmen like Darrell Issa, David Dreier and Dan Lungren have chosen to sit this one out. That has left the field of challengers to 14 Republicans, five Democrats and four minor party candidates — all of whom have zero to little electoral experience or name recognition. In a crowded field of nobodies, getting their party’s endorsement provides an advantage in winning the second spot in the new top-two primary system and its ticket to the general election in November.

The top two system was instituted by Proposition 14 in 2010.  Under it, the top two winners of June 5 primary will face off in November. No other candidates for U.S. Senate will be on the ballot. Assuming Feinstein is the top vote getter, that means just one other person will face her on the ballot, likely a Republican. Third party candidates will be shut out.

The function of the political parties has been reduced to official endorsements.

In March, the California Republican Party endorsed more than 100 candidates for a variety of offices, including for the U.S. Senate. “As the party prepares to be a vigorous contender in California’s first top two primary, we seek to promote the most competitive candidates in the field this primary season,” said Party Chairman Tom Del Beccaro in the press release announcing the endorsed candidates.

Elizabeth Emken won the GOP nod as the most competitive candidate to face Feinstein. However, the Danville autism advocate’s only electoral experience is finishing fourth out of four candidates in the 2010 Republican primary in Democratic Rep. Jerry McNerney’s district. Emken received 16.7 percent of the vote. In a district that winds through four counties, Emken didn’t even win her own Contra Costa County, finishing second, just 270 votes ahead of the third-place finisher.

Such a poor showing might be understandable if a candidate were running a token campaign, placing her name in contention for publicity’s sake but doing little campaigning. But Emken ran full out in 2010, spending $456,404 — more than $200,000 of it from her own pocket. That equates to $40 per vote. At that rate Emken would need to raise more than $200 million to best the more than 5 million votes Feinstein gathered in 2006. As of March 31, Emken had raised just more than $300,000. Feinstein’s campaign treasury had more than $7 million on hand.

‘Most competitive candidate’?

So what makes Emken the “most competitive candidate” in the eyes of state GOP officials? One factor is that her senior communications advisor is Mark Standriff, who in January left his position after two years as communications director for the California Republican Party. “Mark has been a tireless member of our senior staff and dedicated himself to improving the CRP’s communications efforts by helping me reach more voters in more corners of our state,” California GOP Chairman Tom Del Beccaro said in a statement upon Standriff’s departure.

In an email interview, I asked Jennifer Kerns, who replaced Standriff as the California GOP communications director, whether it was helpful for Emken in getting the endorsement to have Standriff on her staff. Kerns did not address the question, saying simply, “He was free to consult with any campaign once he departed the CRP.”

Said Standriff in a phone interview, “The only thing it helped is that I am a professional communications director and somebody who has worked on campaigns for years and was able to put together a comprehensive package. I contacted no board members. Frankly, I wish I had that kind of power.”

Standriff said Emken’s experience two years ago in one district’s partisan Republican primary is not relevant to today’s statewide, top-two primary.

“You have to take everything that happened pre-Prop. 14 and throw it out the window,” he said. “All of these other candidates seem to think this is still a partisan primary, and it’s not. It’s open to everybody. That’s why you will see 24 different names on the ballot. So the Republican Party said, ‘Who do we think is the most electable, who has the best chance to get through June 5th and take on Dianne Feinstein?’ Everybody had the chance to present their financial package and show how much money they will be able to raise and present their positions. She’s the only one who has ever gone to Washington D.C. and stood up and said, ‘Enough is enough.’ And that’s a big thing.”

Kerns said Emken’s experience as an autism lobbyist was a major factor in her endorsement.

That was echoed by Jeff Corless, Emken’s campaign manager. He said, “She, unlike the rest of the candidates, not only has business experience and experience helping those truly in need, but also understands the legislative process from day one when she goes back to the Senate, because of her experience in advocacy for autism.”

Endorsement process

Perhaps it’s a case of sour grapes, but several Republican candidates who did not get the endorsement or chose not to participate in the endorsement process, with its $500 buy-in for consideration, have harsh words for the way things went down.

“I believe the Republican Party has committed fraud in its endorsement of Elizabeth Emken by doing so without providing an opportunity for all candidates to be heard,” said Dennis Jackson, an aerospace general manager from Rancho Cucamonga. “Due to the open primary, there were no party debates or any type of debate that was televised.

“I have been a voting Republican since 1968 and would destroy Elizabeth Emken in a debate or in a comparison of backgrounds that would best serve this nation. However, I was never contacted by the Republican Party about any meeting to review my candidacy, policies or background. In making the endorsement in such a manner, the party is playing king-maker and insulting the intelligence of the voters as well as attempting to silence the voice of the candidates that they never even took the time to meet. The party politics seem more in line with the Bolsheviks than the Founding Fathers.”

Disappointment

Also ticked off in Rancho Cucamonga is MBA student Dirk Allen Konopik, who said, “The California Republican Party’s leadership, to include Chairman Tom Del Beccaro, has been a constant disappointment; from their continuous failure to support viable candidates, to the unethical decision to charge U.S. Senate candidates $500 just to consider them for the CRP endorsement. I chose not to pay. It is now very clear to me, after ramping up our U.S. Senate campaign since January 2011, why the Democratic Party controls California. It’s because the CRP is inefficient, ineffective and corrupt. In my opinion, I would rather have the California Federation of Republican Women lead the CRP.”

Also critical is Orly Taitz, the Laguna Niguel attorney who has become known for challenging President Obama’s citizenship.

“The nomination process was a complete fraud, and a number of the candidates are considering suing the corrupt 24 board members,” said Taitz. “Two candidates … talked to the Chair of the Board Tom Del Beccarro and another board member, who told them that the meeting and discussion was just a formality, the decision was already made. So, the Board has collected several thousand dollars from candidates under false pretenses. They used this money to have a nice weekend at a nice hotel and announced the predetermined decision. They defrauded the candidates and the voters.”

Another unhappy candidate is Rick Williams, a Los Angeles attorney.

“I believe the California Republican Party acted improperly by engaging in a process to endorse one candidate in the United States Senate race from a field of 14 good Republicans running for the seat,” he said. “I declined to participate in their disgraceful process. I realized it was a sham and wanted nothing to do with it. The decision as to which candidate should represent the Republican Party against Dianne Feinstein is for voters to make — not a tiny group of insider political operatives at the state party who were trying to tilt the playing field.”

Nachum Shifren, a Santa Monica rabbi, believes the state party snub of his campaign may be an asset: “My chances are helped, since the GOP mafia and good ol’ boys club will never nominate or support a true conservative that threatens the status quo,” he said. “I am having success in precisely distinguishing myself from the other RINO candidates and those that simply won’t take on the difficult issues.”

Kerns dismissed the criticism of the endorsement process, saying, “We provided every candidate the opportunity to be heard, in writing, by phone, and in person. This was to ensure the fairest process.”

If party officials had decided to base their endorsement on the candidate with the best electoral experience, they would have chosen Greg Conlon, a Burlingame CPA.

“I probably have the best chance because I ran statewide in 2002 for state treasurer and received over one million votes in the primary and three million votes in the general election against Phil Angelides, an incumbent,” said Conlon. “Therefore, even though it was 10 years ago, some will remember the name and vote for me now.”

The GOP endorsement may ultimately be irrelevant to the outcome of this year’s election. It’s likely that whoever wins the primary from among the 14 largely unknown and inexperienced Republican candidates will become a sacrificial lamb led to the Feinstein slaughter in November.

OCT. 15, 2010

By JOHN SEILER

Dan Lungren faces a tough re-election challenge in his re-election bid for Sacramento’s 3rd congressional district. He faces Democrat Ami Bera, an Indian-American physician. The difficulty of the election is surprising in an election year highly favorable to Republicans.

Lungren is a longtime congressman and former attorney general of California, from 1991-98. He lost the 1998 gubernatorial election to Democrat Gray Davis.

Lungren may be facing difficulty because his conservative credentials long have been in doubt, especially on the rock-ribbed conservative issue of property rights. More than any politician in America, Lungren is associated with civil asset forfeiture. Under such laws, someone need not even be arrested, let alone found guilty, before the government seizes his in an alleged crime.

In his first stint in Congress, Lungren sponsored the infamous 1984 “Lungren Law,” whose offical name is the Comprehensive Forfeiture Act of 1984.

In California, one of the worst aspects of state forfeiture laws was that the property generally was kept by the local or state police department — a slush fund not accountable to voting taxpayers. A November 17, 1992 news article in The Orange County Register explained how it worked:

No one looked twice when Police Chief Arb Campbell cruised around town in a 500 SEL that officers had seized during a 1991 drug bust.

Yet state policy emphasizes that all forfeited assets should be used strictly for law-enforcement work, according to David Puglia, a spokesman for Attorney General Dan Lungren. It’s unclear whether Campbell’s use of the 1985 Mercedes-Benz was a violation of state law….

City Manager Kevin Murphy said it was unclear whether Campbell’s use of the Mercedes was a violation, even if the chief used it on personal trips. Campbell had been given extra privileges with his city car to use on personal business as long as he paid for the fuel, Murphy said.

Death by seizure

An even more infamous asset forfeiture case involved rancher Don Scott, who was killed by police on his ranch in 1992. Wikipedia described what happened:

When deputies broke down the door to Scott’s house, Scott’s wife would later tell reporters, she screamed, “Don’t shoot me. Don’t kill me.”^[3] That brought Scott staggering out of the bedroom, bleary-eyed from a cataract operation — holding a .38 caliber Colt snub-nosed revolver over his head.^[4] When he emerged at the top of the stairs (note: this was a one-story residence), holding his gun over his head, the officers told him to lower the gun. As he did, they shot him to death. According to the official report, the gun was pointed at the officers when they shot him. ^[1]

Despite a subsequent search of Scott’s ranch using helicopters, dogs, searchers on foot, and a high-tech Jet Propulsion Laboratory device for detecting trace amounts of sinsemilla, no marijuana — or any other illegal drug — was found….

Michael D. Bradbury, the District Attorney of Ventura County conducted an investigation into the raid and the aftermath, issuing a report on the events leading up to and on October 2, 1992. ^[1] He concluded that asset forfeiture was a motive for the raid. ^[6][7]

Lungren vs. reform

It was such abuses that led to a movement to allow California’s civil asset forfeiture laws, passed five years earlier, to expire at he end of 1993. The movement was led by a “strange bedfellows” alliance between conservative Newport Beach Assemblyman Gil Ferguson, a decorated U.S. Marine combat officer and veteran of World War II and Korea, and liberal Democratic Assemblyman John Burton, later Senate leader and current chairman of the California Democratic Party.

Ferguson, a brave and beloved figure in Orange County politics, died in 2007. Ferguson once said, “In the Roman legions they had men in each company who carried the standard. He’d rush among the enemy to plant it in the ground. All the other men would fight toward the standard to rescue him. That was his job. I view that as my job.”

Leading the opposition against them was Dan Lungren, who had been elected attorney general in 1990. As The Orange County Register wrote in a February 23, 1993 editorial:

At the end of this year, California’s own draconian seizure law expires. The state legislature now is debating whether to extend the law….

California Attorney General Dan Lungren, considered a conservative, backs the extension of this extremely unconservative state assault on property rights. In 1984, as a US congressmen, he even sponsored the US federal seizure law now in effect.

Mr. Lungren needs to reassess his position to realize that a free society rests on the rock-solid right of private property….

Seizure laws also violate our ancient Anglo-Saxon tradition of someone being innocent until proven guilty. If government seizes your property, you only can reclaim it after paying expensive legal fees and grinding through years in court.

On April 20, 1993, The Register explained the duel between Ferguson/Burton and Lungren:

On Tuesday, May 4, the state Senate Judiciary Committee will hold hearings on SB 1158, a bill proposed by central valley Republican Sen. Ken Maddy and supported strongly by Attorney Gen. Dan Lungren to broaden the power of state government and law-enforcement agencies to seize the assets of people accused of crimes, especially drug crimes. The committee would do well to reject this bill and opt instead for the kind of reform embodied in a different bill that has already passed the Assembly Committee on Public Safety.

AB 114, proposed by Democrat John Burton of San Francisco, is not perfect. But it is a good-faith attempt to reform laws that allow law-enforcement agencies to seize property owned by people accused of crimes — purportedly because the property is the proceeds of criminal activity or has been used to conduct criminal activity….

It is curious that people generally viewed as conservatives of one stripe or another, who should be in the forefront of the fight to safeguard the right to private property, are instead seeking to weaken those safeguards. We hardly ever agree with Assemblyman Burton, but on this issue he displays a healthy concern for civil liberties. The Legislature should follow his lead here and administer a sharp and well-deserved defeat to Mr. Maddy and Mr. Lungren.

That’s exactly what happened. Later, the Burton-Ferguson bill was passed, and some rights of the innocent were restored — although federal asset forfeiture laws still could be used by local and state law enforcement.

Toe-to-toe, Ferguson vs. Lungren

I well remember those times. The duel between Lungren and Ferguson was real. A staffer with Ferguson at the time just told me the following, on condition that I not use his name:

Gil was adamant about private property and property rights. He was a good and longtime friend of the late professor Bernie Siegan. Both he and Gil opposed zoning laws, government building codes and eminent domain.

Gil and Lungren did not see eye to eye on several things. Lungren supported the vicious club of government asset forfeiture.  As a firm advocate of private property and property rights, Gil was very opposed to megalmaniacs like Lungren and thier war on private property and freedom. They went toe to toe at a Republican convention in 1991.

Gil was quite the Rennaisance man: a soldier, a corporate executive, a community organizer, a legislator, a homebuilder, a philosopher, a newspaper publisher, a father and an artist.

Gil was a great man. His courage on the beaches of Guadalcanal, the frozen mountains of Korea, and battling with and winning often over the seething viciousness of the California Assembly, the Republican Party and the community itself was unparalleled.

Lungren for governor

There was a comic element to Lungren’s fixation with giving the police more powers and perks, including Mercedes 500 SELs. He hoped to ride their endorsements into the governor’s mansion. But something funny happen. In the early 1990s Gray Davis, then the head of the Democratic Party, pulled a switcheroo.

Until then, there was a balance in state politics. Republicans were “law and order” and sided with the police. Democrats backed “civil rights” and often clashed with police over excessive police powers. But the 1978 Dill Act, signed into law by then-Gov. Jerry Brown — whose chief of staff at the time was Davis — made legal collective bargaining with state worker unions, including police  unions.

Davis figured that, if Democrats sold out on the civil rights aspect, police — and prison guards — would naturally gravitate to the Democratic Party, the natural home of unions. That’s just what happened. In 1998, Lungren ran on a “law and order” platform, but most law-enforcement unions backed Davis, who won by 20 percentage points. The police and prison guards’ unions were rewarded by Davis with pension-spiking and pay-spiking, major contributors to the state’s endemic fiscal problems.

How bad it was

On August 29, 1993, as the California asset-forfeiture law was about to expire, The San Jose Mercury-News ran a story describing the damage to innocent, regular Californians by the law that Lungren was so devoted to:

After Kay Van Sant’s 30-year-old son was arrested on drug-trafficking charges last spring, the Bakersfield police marched into her bank and drained her checking account of $3,912.

Van Sant, a self-employed bookkeeper who hasn’t lived with her son in 10 years, has never been accused of a crime. And she hasn’t gotten her money back.

Miluska Portilla and Percy Ormeno, T-shirt vendors who live in Daly City, lost $1,045 when San Francisco police raided their house looking for drugs. No drugs were found. No arrests were made. The only thing police officers found was a piece of paper they said was a record of narcotics sales — a document the prosecutor who took their cash admitted he’d never seen.

Roberto De La Torres’ pickup was seized in March after his cousin was arrested in it with a pound of marijuana. De La Torres, who speaks no English, wanted to explain that he’d loaned the truck to his cousin before leaving on a Mexican vacation. He never got the chance. Announcing that “the court doesn’t speak Spanish,” a Kern County judge awarded De La Torres’ pickup to the police, ignoring his pleas for an interpreter.

These tales and dozens like them are the untold story of California’s asset-forfeiture law, a 5-year-old experiment designed to combat the overlords of the state’s multibillion-dollar illegal-drug industry.

The state’s top law-enforcement officers call the experiment — which they estimate has resulted in at least $1 billion in seizures — an unqualified success, and are pushing to make it permanent.

But a three-month San Jose Mercury News investigation found a very different world — one of widespread abuses, where suspicion and hearsay can cost you your car, your cash, your house, the pictures on your wall and the clothes in your closet; where the police seize property first and ask questions later; where you’re guilty unless you prove otherwise — and if you can’t afford a lawyer, too bad.

It is a world where, if you’re poor or ignorant, you stand almost no chance of winning –even if you happen to be innocent.

Fast-forward to 2010. If Dan Lungren is re-elected, and Republicans take control of Congress, he will be one of the most powerful men in America.

John Seiler, an editorial writer with The Orange County Register for 20 years, is a reporter and analyst for CalWatchDog.com. His email: writejohnseiler@gmail.com.