In just a few weeks, candidates who will appear on the ballot in the upcoming June, 2010 primary election in California will submit their paperwork to the various county elections officials across the state, officially declaring their candidacies, and they will submit their names and proposed ballot designations for the ballot.  In some cases they may also be allowed to pay for a short "candidate statement" to appear in the advance ballot materials sent to all voters. 

     In California, a candidate is allowed to have their name, including a "nick-name," and up to three words describing the "principal" "profession, vocation, or occupation" printed on the ballot.  Incumbents get additional words if they want, describing the official title they hold.  There is sometimes litigation over whether the chosen "profession, vocation, or occupation" of the candidate is a "principal" endeavor, since the underlying requirement of the name and ballot designation is that it must not be misleading to the voter.  Sometimes there is even litigation over whether the candidate’s name is misleading or not.  The Secretary of State publishes regulations that give insight into what it considers legal.  http://www.sos.ca.gov/elections/regulations/op-ballot-designation-regulations-12212009.pdf.  Candidates usually must complete a "ballot designation worksheet" when they sign-up with the county elections official, and where there is a question about the name and designation, that sheet bounces between the county and the Secretary of State’s office while they determine whether to accept a proposed designation.  Since all this occurs very close to the printing of ballots, any litigation is last minute and fast-tracked

     The name a candidate uses for the ballot is a very important part of success or failure in an election, and an important aspect of a candidate’s communication to voters.  Indeed, studies have found that among voters who possess a low level of information about candidates in an election, the ballot itself is the primary source of information about the candidates.  Low-information election contests are the ones that don’t get the most media or advertising attention.  A Board of Equalization race, or a County Assessor race, might be considered a “low information” contest, in comparison to a U.S. Senate race or Governor’s race, where there will be a lot of information for voters to base their decisions.  In a study of use of names in judicial elections, Professor Lawrence Baum of Ohio State observed that after casting ballots for the high-information contests, voters “are then confronted with a set of low-information contests.” “Names on the ballot can trigger evaluations of candidates……Moreover, candidates’ names can create new impressions that have no basis in prior information about the candidates.  For instance, one candidate’s name may have a vaguely positive or negative connotation to a voter.  In Texas, one candidate for the state Supreme Court with dubious qualifications was elected on the basis of a surname that was similar to the names of two well-known politicians, while another candidate named Gene Kelly won a supreme court primary as an underdog.”

     The Honorable Rebecca A. Wiseman, associate justice of the Fifth Appellate District Court of Appeal, wrote an article a few years ago for California Lawyer magazine that supports Baum’s research.  Justice Wiseman found that between 1982 and 1998, justices running for reelection in California with “non-Latino” sounding surnames benefitted from a 1.6% average “lift” in total vote compared to candidates with Latino sounding names.  Justice Wiseman also found that candidates with German or Russian sounding names sustained an average 1.5 percentage “drop” in total votes compared to their colleagues.   Justices with Italian-sounding names did just as well as their colleagues in judicial elections.

     Names can make a difference in an election.  It is a fact, similar to the facts in the book "Freakeconomics," that if he decided to run for Muncipal Water District, my former Wilshire Blvd., California YAF office landlord in Los Angeles, Mr. Victor Gay, would be more likely to get a lift from voters because of his name in a West Los Angeles or San Francisco, district, rather than Riverside or San Bernardino.  Two years ago I won a Superior Court litigation against a candidate who tried to put an "assumed" or "stage" name he uses on the ballot.   He had never gone to the effort of legally changing his name.   He lost that litigation, his true name was put on the ballot, and he lost the election.  I suspect the process depressed his vote, and that his "assumed" name would have polled better.  State law says you can change your name, but you can’t use the new name within one year of filing to put it on the ballot.  If this person had legally changed his name, in time, I think he might have won his election.

     John Adams is a capable Stanford Law graduate blessed with a great name for politics.   A few years ago he won a write-in election, and subseqent run-off, against a Superior Court judge charged with possessing child porn.  If his name was Vladislav, I do not think he would have won the election.

     And studies show some ballot designations are better than others.  "Used car salesman" and "criminal lawyer" are usually not very good ballot designations.  "Firefighter" would be good if it was true.  But some that you would expect to give a big voter boost don’t help, either.   Prior to Proposition 13 in 1978, the great Howard Jarvis ran for Board of Equalization and actually got the ballot designation "Tax Reduction Expert" approved.  But he lost the election.  At the time, he was sometimes dismissed by the media as just an old crank.  The ballot title may have feed that misnomer.  Political consultants generally concede that in a Republican primary election, "businessman," "business owner," or "independent local businessman" test well.  I imagine that in Berkeley, that "Holistic Healer" would work well, too.  But of course, not everyone who uses those titles will win their elections: we are just talking about marginal lift here.

     And though the bar is set pretty low for "businessman" in the case law, it just isn’t easily granted where the person has little real business background.   My client Rosario Marin wanted a ballot title of "U.S. Treasurer/Businesswoman."  When accomplished Democrat lawyer Lance Olson sued us on behalf of the Democrat Party, I thought the problem would be with the "U.S. Treasurer" half, since Marin was indeed not U.S. Treasurer at the time and it was susceptible to a claim that it was misleading.    But we got that part approved by the court, what we lost was "businesswoman!"  Apparently when your only facts are two compensated speeches, it is not enough to qualify for that ballot designation in California.  Another area is use of the word "Mayor."  Contrary to ideas of some lawyers, "Mayor" can be easily defeated as a ballot designation where the "Mayor" is not directly elected, as in a charter city.   General law city mayors who try to use this designation can be beat in court (if you get a really good lawyer like me).   Unfortunately, a case in Huntington Beach allowed the title once, but it did not affect the outcome of the election and I have since won a case canning that designation, even in a charter city, where the Mayor was not directly elected.

     Ballot statements are also interesting.   One must be truthful in these short statements.  A smart candidate will repeat their website URL and email addresses at least three times each in these statements.   Do they move votes?  I don’t know, I have not seen any research on it.  I think in a "low information" race they should be used.  But these can be challenged as well.   It is illegal to mention other candidates on the same ballot in any way, shape, or form.   I won a Superior Court case in Orange County last election cycle where two incumbents gave their city clerk ballot statements that had glowing mutual references to each other.   Both of them are no longer serving on the Council.

     Perhaps all this information is on the dry side.  But it excites me the way fresh tripe excite Anthony Bourdain.   And I have learned one thing for sure: my friend Gary Kreep should never enter electoral politics.

This entry was posted on Wednesday, January 20th, 2010 at 12:00 am and is filed under Blog Posts.