Wed., Feb. 11, 1998; Page 7

Ballot Designations 


By Roger M. Grace


With the public largely in the dark as to the relative qualifications of candidates for judgeships, judicial races are most often won based on ballot designations of the candidates. Unless there is a substantial issue against a sitting judge, a ballot designation indicating that the candidate is a sitting "judge" will most often assure the incumbent of victory. A municipal court judge opposing a superior court judge is apt to have wasted his or her filing fee. A municipal court judge running for a superior court open seat, on the other hand, has a distinct advantage over a "commissioner" of either a municipal court or the superior court because most voters simply don’t know what a court commissioner is. The leading campaign consulting firm in judicial races, Cerrell Associates Inc., won’t handle the campaign of a commissioner vying with a judge. With the public being of anti-crime bent, a deputy district attorney has an edge over other lawyers and over a commissioner.

Given the significance of ballot designations on election outcomes, it is understandable that there has been litigation over what an opponent may or may not use as a title.

The Elections Code spells out in §13107 what is permissible as a designation. That section, formerly §10211 (until 1994), traces its origins to a 1873 provision in the old Political Code. It permits an incumbent to list the title of his or her office fn. 1 or to use the word "incumbent"; it permits any candidate to use a description of no more than three words of the person’s "principal professions, vocations, or occupations" at present or in the previous calendar year.

Elections Code §13107

(a) With the exception of candidates for Justice of the State Supreme Court or court of appeal, immediately under the name of each candidate, and not separated from the name by any line, may appear at the option of the candidate only one of the following designations:

(1) Words designating the elective city, county, district, state, or federal office which the candidate holds at the time of filing the nomination documents to which he or she was elected by vote of the people, or to which he or she was appointed, in the case of a superior, municipal, or justice court judge.

(2) The word "incumbent" if the candidate is a candidate for the same office which he or she holds at the time of filing the nomination papers, and was elected to that office by a vote of the people, or, in the case of a superior, municipal, or justice court judge, was appointed to that office.

(3) No more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents. For purposes of this section, all California geographical names shall be considered to be one word.

(b)Neither the Secretary of State nor any other election official shall accept a designation of which any of the following would be true:

(1) It would mislead the voter.

(2) It would suggest an evaluation of a candidate, such as outstanding, leading, expert, virtuous, or eminent.

(3) It abbreviates the word "retired" or places it following any word or words which it modifies.

(4) It uses a word or prefix, such as "former" or "ex-," which means a prior status. The only exception is the use of the word "retired."

(5) It uses the name of any political party, whether or not it has qualified for the ballot.

(6) It uses a word or words referring to a racial, religious, or ethnic group.

(7) It refers to any activity prohibited by law.

(c) If, upon checking the nomination documents, the election official finds the designation to be in violation of any of the restrictions set forth in this section, the election official shall notify the candidate by registered or certified mail return receipt requested, addressed to the mailing address appearing on the candidate's nomination documents.

(1) The candidate shall, within three days from the date of receipt of the notice, appear before the election officer or, in the case of the Secretary of State, notify the Secretary of State by telephone, and provide an alternate designation.

(2) In the event the candidate fails to provide an alternate designation, no designation shall appear after the candidate's name.

(d) No designation given by a candidate shall be changed by the candidate after the final date for filing nomination documents, except as specifically requested by the elections official as specified in subdivision (c) or as provided in subdivision (e).

(e) The designation shall remain the same for all purposes of both primary and general elections, unless the candidate, at least 98 days prior to the general election, requests in writing a different designation which the candidate is entitled to use at the time of the request.

(f) In all cases, words so used shall be printed in 8-point roman uppercase and lowercase type except that, if the designation selected is so long that it would conflict with the space requirements of Sections 13207 and 13211, the elections official shall use a type size for the designation for each candidate for that office sufficiently smaller to meet these requirements.

(g) Whenever a foreign language translation of a candidate's designation is required under the Voting Rights Act of 1965 (42 U.S.C.A. Sec. 1971), as amended, to appear on the ballot in addition to the English language version, it shall be as short as possible, as consistent as is practicable with this section, and shall employ abbreviations and initials wherever possible in order to avoid undue length.


"Any elector" may seek a writ of mandate in the Superior Court (or Court of Appeal or Supreme Court) to block a ballot designation (or other "error" about to occur in the printing of a ballot, sample ballot or voter’s pamphlet). §13314(a)(1). Subd.(a)(2) provides that the writ will issue "only upon proof of both of the following: (A) that the error, omission, or neglect is in violation of this code or the Constitution, and (B) that issuance of the writ will not substantially interfere with the conduct of the election." 

Petitions assailing either Municipal or Superior Court designations are filed in the Superior Court in the county in which the election is to take place, fn. 2 naming as respondent the local election official (which in Los Angeles would be the registrar-recorder).

An order under Sec. 13314 is appealable. Knoll v Davidson (1974) 12 Cal 3d 335. The appeal "shall have priority over all other civil matters." Sec. 13314(a)(3). Or, the losing party may challenge the action by filing a writ petition in the Court of Appeal against the superior court (Mann v. Superior Court (1986) 181 Cal.App.3d 372, 375), or may file an original proceeding in the Court of Appeal (Andal v. Miller (1994) 28 Cal.App.4th 358, 361).


Salinger v. Jordan (1964) 61 Cal.2d 824

          HOLDING: A candidate who runs in the primary with no ballot designation may gain a designation in the general election upon timely application.
An unlikely scenario is this: a candidate runs in the primary election with no ballot designation and makes it into the run-off. The contender is then appointed to the vacant office being sought, and requests a change of designation on the ballot to reflect his or her new title. Election officials refuse, declaring that there was no designation in the primary, hence no designation to change.

That was the very situation in 1964 when former presidential press secretary Pierre Salinger ran for the U.S. Senate. He was appointed to the post 89 days before the Nov. 3 election. The state Supreme Court, rejecting the secretary of state’s rather labored reasoning (possibly reflecting membership in a rival political party), granted a peremptory writ of mandate ordering the insertion of the title "United States Senator" (and listing of his name first, as the incumbent).

The same reasoning would, of course, pertain in a judicial election. There has, however, been one change in the statute which, if it had been in effect in 1964, would have dictated a different result: the request for a change in designation at that time had to be made 45 days before the general election, and now (under §13107(e)), it must come "98 days prior to the general election."


Workman v. Superior Court (1980) 2 Civ. No. 58915

          HOLDING: A court commissioner may not be designated on the ballot as a "Judge Pro Tempore," but an administrative law judge may be designated as such on the ballot. (Unpublished decision.)
Lee B. Ragins, a commissioner of the Los Angeles Superior Court, was a candidate for a Los Angeles Municipal Court seat in the June 3 election. He sought to be designated on the ballot as "Judge Pro Tempore."

William Turkish, a candidate in the same race, sought to use the ballot designation of "administrative law judge." He was a Public Utilities Commission hearing officer. 

Registrar-Recorder Leonard Panish disallowed both designations, and each of the two candidates went to court seeking a writ of mandate. Superior Court Judge Jerry Pacht granted both petitions.

Then-Deputy City Attorney (now Superior Court Judge) David A. Workman sought a writ in the Court of Appeal, arguing that either designation would falsely impart to the voter that the candidate is a sitting judge. The Court of Appeal agreed with Workman as to one of the two designations. Div. Three, on April 1, 1980, issued a writ ordering the Superior Court to vacate its order permitting Ragins to be identified as a Judge Pro Tempore. Workman v. Superior Court (Ragins, Turkish RPI)¸ 2 Civ. No. 58915.

(Workman went on to win election in a November run-off and was elected two years later to the Superior Court.) 

Luke v. Superior Court
(1988) 199 Cal.App.3d 1360

          HOLDING: A court commissioner may not be designated on the ballot in any manner which includes the word "judge" or any derivative of that word. 
Then-Los Angeles Superior Court Commissioner Jewell Jones (since retired) ran in 1988 for a Los Angeles Superior Court open seat. Her opponent in the June 7 election was a judge of the Los Angeles Municipal Court, Sherrill Luke. Without regard to the contestants’ respective abilities, it was virtually inevitable that Luke, with the ballot designation of a judge, would prevail over the commissioner — unless she were able to devise a ballot designation that would communicate to voters her status as a bench officer of the Superior Court. She attempted to use the designation of "Judge, Los Angeles County (Acting)." Luke sought a writ to block her use of that title. Then-Los Angeles Superior Court Judge Miriam Vogel (now a justice of the Court of Appeal) denied the writ, and Luke then filed a writ petition in the Court of Appeal. Div. Five, in a well-reasoned opinion by then-Justice Herbert Ashby (since retired), serving as acting presiding justice, granted the writ.

Ashby wrote, at 1362:

      "Creative" uses of these subsections [of then-Sec. 10211] are impeded by subdivision (b)(1), which prohibits the Secretary of State or any other election official from accepting a ballot designation which would mislead the voter. The designation "Judge-Los Angeles County (Acting)" is neither the title of the office which Commissioner Jones presently holds (subdivision (a)(1)), nor an accurate description of her occupation (subdivision (a)(3)).

      Commissioner Jones apparently elected to forego subdivision (a)(1), which would have required her to use the title "Superior Court Commissioner" or some acceptable variation thereof, and proceed under subdivision (a)(3), which permits a descriptive title of three words or less. Commissioner Jones accepted the ballot designation "Judge-Los Angeles County (Acting)" after the Secretary of State properly rejected her first two choices, "Judge Pro Tem, Superior Court" and "Judge-Pro Tem, Superior Court."

Ashby went on to say, at 1363:

      Despite our admiration for the work done by the commissioners employed by the court system, we disagree with the respondent court's conclusion that the designation proposed by Commissioner Jones is not misleading.

      Although Commissioner Jones may act as a judge by stipulation, she is not an "acting judge." That term is misleading because it implies that she is the "acting" occupant of the office she is seeking by election. The implication is that the election is a mere formality. We see no appreciable difference between the term "acting judge" and the term "judge pro tempore," the use of which has been disapproved by this court.


      We therefore hold that neither a court commissioner, nor any other individual who is not a "judge," as that term is defined in the Constitution and statutes of this state, may utilize a ballot designation containing the word "judge" or a derivative thereof.

COMMENT: Taken literally, a federal magistrate judge could not utilize his or her actual title inasmuch as that person would not be a judge "as that term is defined in the Constitution and statutes of this state." (For that matter, a federal district judge or circuit appeals would be similarly barred, though prospects of one with life tenure seeking election to a state trial-court seat does not seem likely.)

Andal v. Miller (1994) 28 Cal.App.4th 358

          HOLDING: A candidate may not use a ballot designation which relates to an activity in which he or she does not have a significant involvement.
Then-state Sen. Robert Presley was a candidate in the 1994 general election for a seat on the Board of Equalization. A reserve deputy sheriff, he sought to bill himself as "Senator/Peace Officer." His opponent, then-Assemblyman Dean Andal, petitioned in the Court of Appeal for a writ of mandate to compel the acting secretary of state to reject the designation, arguing that "peace officer" was not one of Presley’s "principal professions, vocations, or occupations," either currently or, as permitted by the statute, within the previous one-year period. The Third District Court of Appeal, in an opinion by Justice Keith Sparks, granted the writ, reasoning, at 366-367:
      [T]he statute requires that the ballot designation reflect the candidate's "principal professions, vocations, or occupations...." (Elec. Code, 10211, subd. (a)(3), italics added.) One of the common meanings of the adjective "principal" is "[h]ighest in rank, authority, or importance" (Webster's New Internat. Dict. (2d ed. 1938) p. 1966) and in this sense it is an oxymoron to assert that a candidate may have more than one principal profession, vocation or occupation. Nevertheless, it is clear that by the use of the plural terms the statute envisions that the candidate may indeed engage in multiple principal professions, vocations or occupations. In the words of the [Secretary of State’s] Guidelines, a candidate "may work at more than one profession, vocation, or occupation." (Guidelines, pt. II.C.1., p. 4.) Thus, the Legislature used the word "principal" in its secondary sense as meaning "[m]ain; leading; outstanding; important; ..." (Webster's New. Internat. Dict., supra, p. 1966.) In this statutory sense, the word connotes 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. Thus, the term "principal" precludes any activity which does not entail a significant involvement on the part of the candidate. Consequently, involvement which is only nominal, pro forma, or titular in character does not meet the requirements of the statute.

      Given this definitional requirement, we conclude the evidence is insufficient to support Presley's claim that his position as a reserve deputy sheriff justified the ballot designation of "peace officer." The claim fails because the evidence did not establish that it was one of his "principal professions, vocations or occupations" (Elec. Code, §10211, subd. (a)(3)) either at the time he submitted the designation in late July 1994 (Elec. Code, §10211, subd. (e)) or "during the calendar year immediately preceding the filing of nomination documents" (Elec. Code, § 10211, subd. (a)(3)). As of July 1994, Presley had done nothing pursuant to his recent appointment as a level III reserve deputy sheriff in Sacramento County. The closest he came to performing actual reserve duties was his appointment to a community action panel that was not even scheduled to meet for another six weeks. As to Presley's consulting [as a member of an advisory board], [Sacramento Sheriff Glen] Craig admitted that he did not intend to request Presley's guidance until after the election. Craig's declaration is silent whether Presley would still serve as a consultant should his election bid prove successful. Equally fatal is the fact that the nature of his position as a reserve deputy sheriff is such that, unlike full-time or part-time deputy sheriffs, Presley will never be compensated for his service. Thus, the position lacks one of the critical hallmarks of a profession, vocation or occupation.

COMMENT: From this, it might be assumed that the Third District Court of Appeal would likewise have barred a member of the Assembly seeking a seat that year on the Los Angeles Superior Court from identifying himself on the ballot as "Law Professor/Lawmaker." The candidate had served as a parttime night school adjunct professor in the past, but was not presently teaching law and had not taught a course in the previous year. The statute restricts listings of principal positions to those currently held and held "during the calendar year immediately preceding the filing of nomination documents." In an unpublished opinion, the same court that decided Andal allowed the "Law Professor/Lawmaker" designation to be used by then-Assemblyman, now Judge, Terry Friedman. Moriarity v. Miller, Friedman RPI, C019137 (filed Sept. 21, 1994). Friedman’s 1992 teaching activities, it noted, "carried over into calendar year 1993 because he had to complete the grading of final examinations for his Fall 1992 course." Id. at 7.

Completing the grading one set of papers during the calendar year preceding the election could not, by any stretch of even judicial imagination, be said to constitute other than "nominal" activity on Friedman’s part as an academician, rather than an activity entailing "significant involvement."

The non-publication of the opinion could well be explained by its inconsistency with Andal and its patent unfaithfulness to the dictates of the statute. While one would not wish rashly to impute lack of partiality to an appellate panel, suspicion is raised by objective factors. Friedman was a powerful Democrat in a Legislature controlled by his party. The judiciary was still feeling the sting of the Legislature’s ire stemming from the Supreme Court’s 1991 decision upholding legislators’ term limits (Legislature v. Eu (1991) 54 Cal.3d 492). There was widespread speculation that Friedman was testing the waters as to the electability of legislators to judgeships and that other lawmakers who would be barred from seeking another term in 1996 would become judicial candidates if Friedman succeeded. Metropolitan News-Enterprise, Nov. 10, 1994, Page 1, "Schwartz, Friedman, Bryant-Deason Elected to Superior Court."

The opinion was authored by Justice Richard M. Sims III and joined in by Acting Presiding Justice Keith Sparks and Justice Arthur Scotland. Sims and Scotland are the same justices who concurred in Sparks’ opinion in Andal.


Andrews v. Valdez (1995) 40 Cal.App.4th 492

          HOLDING: An "administrative law judge" may be so designated on the ballot.
Deborah B. Andrews was a candidate in the 1994 primary election for an open seat on the Long Beach Municipal Court. She was then a judge of the California Unemployment Insurance Appeals Board. The registrar recorder, acting pursuant to then-Elections Code §10211, rejected the ballot designation she desired of "administrative law judge" on the ground that it was "misleading." Los Angeles Superior Court Judge Diane Wayne granted a writ of mandate ordering the registrar recorder to accept the designation, and the registrar-recorder appealed. Div. Three of this district’s Court of Appeal, in an opinion rendered a year-and-a-half after the election (which Andrews won), affirmed.

Andrews could call herself an administrative law judge, Justice Patti Kitching wrote for a unanimous panel, because she was an administrative law judge. 

Distinguishing the present case from the fact situation in Luke v. Superior Court, supra, Kitching explained, at 495, that Andrews’ ballot designation, unlike the one Jewell sought to use, was neither "creative" nor "misleading"; rather it was the very title conferred by the Legislature in 1984 on those judicial officers previously denominated "referees." Kitching added at 495-496:

      Luke properly rejected a candidate's attempt to invent a nonexistent occupational designation which misleadingly implied that the candidate already occupied the office sought by the candidate. In this appeal the Legislature's approval of "administrative law judge" left Andrews with no other choice but to designate that title accurately. We therefore conclude that the trial court ruled correctly.

1.  The same office may be listed in various forms. In 1994, these ballot designations were utilized by judges of the Los Angeles Superior Court :

Judge of the Superior Court 
Judge of the Los Angeles Superior Court 
L. A. Superior Court Judge 
Superior Court Judge 
Judge of Los Angeles Superior Court 
Judge, Superior Court 
Judge Los Angeles County Superior Court 
Superior Court Judge, Los Angeles County 
Judge, Los Angeles County Superior Court 
Judge of Superior Court
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2. Under subd. (b)(1), venue lies exclusively in Sacramento whenever the secretary of state is a respondent or real party. As some interpreted prior law, all challenges to Superior Court designations had to be tried in Sacramento inasmuch as the secretary of state was the election official to whom Superior Court nominating petitions were routed. Former Elections Code §8070. That interpretation was not universal. Thus, Luke v. Superior Court (1988) 199 Cal.App.3d, discussed infra, was a ballot designation dispute heard in Los Angeles Superior Court and the Second District Court of Appeal; Moriarity v. Miller, Friedman RPI, C019137, was a ballot designation dispute likewise arising from a Los Angeles Superior Court contest but which was heard in the Sacramento Superior Court and the Third District Court of Appeal. Any uncertainty over venue was resolved by AB 1708 (McPherson, R-Santa Cruz), enacted in 1995 as urgency legislation. It “deletes several provisions of law which require county elections officials to forward  nomination and other documents related to candidates for  Superior Court offices to the Secretary of State, who certifies them and then returns the documents to the county  elections officials.” Bill digest. Return to text

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