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October 2016 SPECIAL FEATURE: Elections and the Law - Election Law: The Litigation that Quietly Shapes Your Ballot

by Chad D. Morgan

Litigation concerning the outcome of an election is the election law topic that gets the most attention. Bush v. Gore, 531 U.S. 98 (2000) brought election law to the forefront of national debate. Here in Orange County, Nguyen v. Nguyen, 158 Cal. App. 4th 1636 (2008) resolved an election for Orange County Supervisor that was decided by just seven votes. But few people notice the comparable multitude of lawsuits that resolve ballot issues before ballots are ever printed.

Election lawsuits have priority over all other civil matters. Elec. Code § 13314(a)(3). In just ten to fourteen days, the cases are filed and fully briefed, hearings are held (sometimes with live testimony), judgments are entered, and writs of mandate are issued. Cases resolve disputes over ballot designations, candidate statements, ballot arguments, and ballot access.

Like many other codes, there are Elections Code provisions that are poorly written. However, unlike other practice areas, there is not a wide body of case law that helps interpret vague statutes. Combine this with broad application of judicial exceptions to otherwise strict procedural rules, and election litigation can seem like the Wild West.

Ballot designations exemplify this. A “ballot designation” is the designation that appears under a candidate’s name on the ballot. Elec. Code § 13107(a). For all practical purposes, this “designation” is the candidate’s occupation.

Ballot designations are a big deal, especially in local elections and down-ballot races. Many voters will judge candidates solely on their occupations. As one can imagine, candidates have a tendency to get very creative when choosing a designation. Some candidates even poll alternative designations to see which will give them better results. When they get too creative, however, they open the door to litigation challenging the validity of their chosen designation.

Candidates can choose a designation from one of four categories. The most common is a designation with “[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate, or [prior principal professions if the candidate does not presently have any].” Elec. Code § 13107(a)(3). Principal commonly means “highest in rank, authority, or importance,” but the legislature, in its infinite wisdom, uses “professions, vocations, or occupations” in their plural forms.

A 1994 appellate court recognized the oxymoronic nature of having multiple occupations that are “highest in rank” but deferred to the plural-use of “professions, vocations, and occupations” as demonstrative of the legislature’s intent that candidates could somehow have multiple principal occupations. Andal v. Miller, 28 Cal. App. 4th 358, 366 (1994). Andal then defined “principal” as “a substantial involvement of time and effort such that the activity is one of the primary, main, or leading professional, vocational, or occupational endeavors of the candidate.” Id. A few years later, the Secretary of State promulgated regulations adopting the Andal definition of “principal.”

More than twenty years later, Andal is still the only opinion (published or unpublished) that has considered this definition of “principal.” Moreover, while Secretary of State regulations and a few other cases help define the terms “profession,” “vocation,” and “occupation,” the distinction between valid designations and designations depicting improper “avocations,” “pro-forma professions,” and “status” designations is not always clear.

In my own experience, I represented a client challenging a candidate’s use of “Engineer” as his ballot designation. The candidate had an engineering degree and had worked as an engineer many years prior, but his current occupation had nothing to do with engineering. I argued that “Engineer” was the candidate’s former profession and a status, but the judge permitted the candidate to be described as an engineer on the ballot.

In contrast, a Sacramento County judge granted my client’s challenge to a candidate’s use of “Farmer” even though the candidate spent several hundred hours annually tending to his orchard and generated significant income through farming. The court determined that this was not substantial enough to be the candidate’s principal occupation.

It’s probably no surprise that I think the court was wrong on “engineer” and correct on “farmer,” but parties in election cases do not really have a practical right to appeal. Of course anyone can appeal, but appeals of pre-election decisions cannot generally be resolved prior to ballot printing deadlines even with an extraordinary writ. Indeed, by the time an appeal is decided, the election would be long over and a resulting opinion would only clarify the law for future cases. I doubt I will ever find a client who will see value in pursuing an appeal that will not right the wrong they perceive to have suffered.

The “Farmer” designation is a clear illustration of a very powerful ballot designation (at least in the Central Valley) that raises some of the difficult questions courts must answer. While I think everyone would agree that a full-time, professional farmer can list “Farmer” on the ballot without question, what about part-time farmers? When does farming transition from a hobby or status into a full-blown occupation? Is my neighbor a farmer because he grows tomatoes in his backyard? What if he is obsessed with his garden? What about someone who occasionally sells produce at the farmers’ market? How much time and effort is required to be a “substantial amount of time and effort”? Without clear boundaries, the answer varies from court to court.

However, when it comes to candidates with professional licenses, the regulations provide clarity that sometimes seems inconsistent with the principal occupation rule. Under the regulations, a candidate who possesses a professional license may claim that profession as his or her principal profession even if the candidate has never engaged in that profession. 2 Cal. Code Regs. § 20714(b)(1). Under this rule, a member of the bar can claim his or her principal occupation is “attorney” even if he or she has never practiced law. If that’s not a problem, what about the candidate for school board who is an “educator” because he or she has a teaching credential even though the candidate has never taught in a classroom?

Election law encompasses more than challenging the outcome of an election and managing campaign finance compliance. In any election, there is a good chance that ballot designation for one of the candidates on your ballot or that the arguments made in your sample ballot were the subject of litigation.

Chad D. Morgan is a solo practitioner who focuses on election law, including litigation concerning elections and other public law matters. He may be reached at chad@chadmorgan.com.

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