Lawsuit to change London Breed’s ballot designation from “Acting Mayor” is inevitable

Supervisor London Breed alongside Joshua Arce and others at the neighborhood preference press conference at 1950 Mission St. on Wednesday, August 31, 2016. Photo by Joe Rivano Barros.

Removing Supervisor London Breed as acting mayor required Oceans 11level plotting and political intrigue. But getting the acting mayor off the ballot is going to require something more: Lawyers and litigation.

Despite Breed’s very public Jan. 23 ouster in favor of Mark Farrell, she is still listed as “Acting Mayor/Supervisor” on June’s forthcoming ballot. The deadline for the Department of Elections to summarily change this passed on Jan. 9. (Mark Leno, by the way, is listed as “small businessman.” And if you think he’s peeved about being unable to list himself as “former state senator” — which is factual — while Breed describes herself as “acting mayor” — which is not — then you’d be right).

After communications with a bevy of election lawyers, city political strategists, campaign operatives, elected officials and others, it has become readily apparent that a lawsuit to challenge Breed’s designation is all but inevitable, and is likely to be filed in the coming weeks.

Such an action is necessary because the review period in which members of the public could merely petition to change a candidate’s designation expired on Jan. 22. Breed was, again, removed as acting mayor on Jan. 23. Interestingly, that vote was pushed back from Jan. 16 after Supervisor Malia Cohen claimed a conflict — after initially agreeing to meet.

When we asked Breed if she would proactively move to change her designation to accurately fit her current position, she laughed. “No! Why would I?”

The filing. True at the time.

And yet, the optics of a candidate either actively attempting to inform voters she is still mayor when she is not — or taking no action to correct this misinformation — could be, shall we say, unflattering.

Despite the Jan. 9 and Jan. 23 deadlines, the city won’t send its ballot to the printer until March 10, at the very earliest. The election isn’t until June 5; locking down the ballot designations at this early period harks not to the turnaround times of the last century, but the one before that.

The California statute that enables a lawsuit, however, is not burdened by a hard-and-fast deadline. Elections Code Section 13314 states that “an elector” — that would be every registered voter in the City and County of San Francisco — “may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of a ballot … “

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The key here will be determining if listing Breed as “acting mayor” when she clearly is not is an “error” — and, per state elections code, would “mislead the voter.” She inarguably was acting mayor at the time she submitted her paperwork in early January. But, again, we live in an age when news of Breed’s ouster needn’t be conveyed to the print shop via the Pony Express — and, even if it was, there’s a long time between Jan. 23 and March 10.

“If I were a judge, I might be open to being persuaded, but I would say it’s a misleading title,” says UC Davis law professor Floyd Feeney. “Would somebody who is reading this read it to mean she is the acting mayor now? I think there is some risk to that.”

Still, “I don’t think it’s a slam dunk on either side.”

Stanford political science professor Bruce Cain largely agreed. “She was acting mayor and that terminated. In the modern era, should we be able to fix ballots faster and are requirements antiquated, given what could be done? I would think San Francisco could do better,” he says. “But, you know, it doesn’t go down in the annals of history as one of the great misleading ballot designations ever.”

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One Comment

  1. GREG SMITH

    The San Francisco political class is so petty and small.

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