Election Law Blog

Interesting press release via email:

SAN CLEMENTE CITY COUNCILMEMBER BOB BAKER TAKES ISSUE WITH BALLOT POSITIONING SHENANIGANS

Incumbent Councilmember “Bob Baker 1” Says Sham Challenger “Bob Baker 0” Gamed the System To Gain an Unfair Advantage.

Robert “Bob” Baker  (“Bob Baker 1”) is seeking reelection to the San Clemente City Council this November.  A second Robert “Bob” Baker (“Bob Baker 0”) has appeared out of thin air to challenge his namesake, leading voters to ask “Will the real Bob Baker please stand up?”

The California Elections Code calls for similarly named candidates to use numerical distinctions to differentiate themselves for the voters.  City Clerk Joanne Baade is listing the Bob Baker who chose the lowest number to appear first among the two Bob Bakers on the ballot.  This is where the situation gets “curiouser and curiouser” like something out of Alice in Wonderland.

The incumbent Bob Baker, who was the first Baker to file his candidacy papers and to select a number, chose the number “1,” reasonably concluding that he had secured the first, and thus lowest, number and would appear above the newcomer Bob Baker on the ballot.  The new Bob Baker, however, instead of logically choosing any number from 2 upward, was allowed to select “0.”  The story should have ended there, with the Clerk rejecting the Johnny-Come-Lately Baker’s selection and requiring him to choose number 2 or any other positive integer besides 1.

But no, instead, the Clerk issued a statement that “Robert ‘Bob’ Baker No. 0 will appear immediately before Robert ‘Bob’ Baker No. 1 on the ballot because zero is a lower number than one.”  Really?

Political scientists have proven, and the California Supreme Court has acknowledged, a “primacy” effect in which the higher up a candidate’s name appears on the ballot, the more likely that candidate is to gain extra votes (often in the amount of several percentage points) over and above those whose names appear lower on the list.  So ballot position matters, which is why the Secretary of State performs a “randomized alphabet drawing” for each election.

Bob Baker 1 expressed surprise at this development, stating “Someone can be 1st in line, but no one can be 0st in line, can they?”  “And do winners of races come in 1st place or 0th place?”  Baker 1 surmised that another candidate recruited Baker 0 to run in order to confuse the voters and dilute Baker 1’s votes.  “San Clemente’s voters are quite intelligent,” said Councilman Baker, “and they will see through this charade and vote for the Bob Baker who doesn’t play games with the electoral process but merely wants to continue serving the City as a member of the Council.”  A voter, who did not want her identity revealed, said “Having served in the U.S. Navy for 7 years and as a commercial pilot for 30 years, Bob Baker 1 is a hero, whereas Bob Baker 0 is a “zero.”

Election law expert Brad Hertz of the Sutton Law Firm, who teaches Election Law at Chapman University Law School and is former President of the California Political Attorneys Association, said “The City Clerk’s actions make no sense, and Bob Baker 0 should not have been allowed to designate himself as such.”  Hertz pointed to Elections Code section 13117, which states that “… all state measures … shall be numbered in a continuous sequence, commencing with the number “1” and continuing in numerical sequence for a period of 10 years from the year of commencement.  At the completion of a 10-year cycle, the numbering sequence shall recommence with the number “1” at the next election….”  Hertz, who commonly litigates election law matters, and with whom Baker 1 has consulted, said “If common sense does not carry the day, then at least this analogous Elections Code section should guide the City Clerk to realize that “1,” not “0,” is the first and lowest number in the context of ballot position.”