Candidates Hoping to Replace Newsom Sue Secretary of State Over Ballot Issues

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Former San Diego Mayor Kevin Faulconer, a GOP candidate to replace Gov. Gavin Newsom — along with talk show host and fellow Republican gubernatorial candidate Larry Elder — is suing Secretary of State Shirley Weber over ballot issues. (Justin Sullivan/Getty Images)

Two high-profile Republican candidates for governor in the state's upcoming recall election – talk show host Larry Elder and former San Diego Mayor Kevin Faulconer – have each filed lawsuits over different decisions made by California's top election official, Secretary of State Shirley Weber.

It's par for the course that candidates and campaigns file lawsuits against state officials in hopes of affecting how they or their issues are described in the election guide sent to every voter. But the high stakes and compressed calendar leading up to the Sept. 14 recall election are triggering a number of pivotal lawsuits with little time to spare.

In Faulconer's case, he's suing over Weber's rejection of his preferred three-word ballot description next to his name: "Retired San Diego Mayor." (City names count as one word).

In a letter to Faulconer, an attorney in Weber's office wrote that "it is our understanding that you were unable to run for another term due to terms limits. As such you did not voluntarily retire, thus making your proposed ballot designation unacceptable."

"Candidacies really live and die on those three words of what's on the ballot," said elections law expert Jessica Levinson from Loyola Law School in Los Angeles.

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Levinson notes that while the secretary of state's office is technically correct, Faulconer "wasn't ousted by a recall. His term didn't end other than for reasons of term limits. So it's not clear what the better option here is."

Levinson noted that the election code very much limits the ways candidates can describe themselves in three words. "You can't say 'termed out' because it's too many words. We know you can't say 'former.' We know you can't say 'ex-.' So what's the better option?"

Candidates are allowed up to two alternative ballot designations in case their first choice is rejected. Faulconer offered just one: "Businessman/Educator."

On Twitter, political insiders offered several tongue-in-cheek options, including "Emeritus Mayor San Diego," "Erstwhile Mayor San Diego" and "Usetabee Mayor San Diego."

In Elder's case, his name was excluded altogether by the secretary of state when the list of candidates who had filed the proper paperwork was released Saturday night. The state indicated there was a problem with either the five years of personal income taxes Elder filed or the redacted version to be made public.

Elder filed a lawsuit to compel Weber to place his name on the ballot using several arguments, including that state law says the secretary of state is required to fix any redaction errors.

Election attorney Bradley Hertz, whose firm represents candidates on ballot designation disputes, says the court will weigh whether Elder tried to substantially comply with the law.

"So if the judge sees this as a technicality or as something that the secretary of state is overreaching with regard to Larry Elder, I would think a judge would not be reluctant to order Mr. Elder's name to be on the ballot," Hertz said, who is not working for any of the candidates.

Elder also claims that the secretary of state had no basis for requiring recall candidates to release five years of personal income taxes.

"He has another claim here that the secretary of state shouldn't even be requiring these tax returns," said Levinson. "And again, I think he has a pretty good claim based on the legislative language," which refers to primary elections, not recall elections.

A similar legal argument is made by another lawsuit filed Tuesday on Elder's behalf by former Monterey Park Mayor Judy Chu.

"My lawsuit is to protect the constitutional rights of all Californians to vote for a qualified candidate who is being kept off the ballot contrary to state law," Chu said.

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In a video message released last weekend, Elder, wearing his signature white robe, said, "I don't have any real concerns that I'm going to be off the ballot come Wednesday," which is the final deadline for candidate certification.

Occasionally campaigns file lawsuits like these just to make a point or generate headlines. But election attorney Hertz said that does not seem to be the case here.

"In both of these lawsuits, it would seem to me they are in it to win it," he said.

These are not the first lawsuits filed against the secretary of state over the recall. Last month, Gov. Gavin Newsom himself sued Weber — who he appointed to the job – seeking to compel her to note Newsom’s Democratic Party affiliation next to his name on the ballot, even though Newsom’s attorneys missed the deadline.

The judge rejected Newsom’s arguments.