State Senator Mark Leno at a fundraiser in 2011.

Mayoral aspirant Mark Leno this afternoon filed a writ in San Francisco Superior Court aiming to compel fellow candidate London Breed to do what she has refused to do on her own: remove the inaccurate title “acting mayor” from her ballot designation.

“Because Breed is not the Acting Mayor of San Francisco, and does not perform any mayoral duties, her chosen ballot designation is not factually accurate and it misleads the voters, in violation of the California Elections Code,” reads the petition, filed against Department of Elections head John Arntz and Breed, “an individual.”

Breed, the president of the board of supervisors, assumed acting mayor responsibilities upon the death of Mayor Ed Lee on Dec. 12. When she filed her papers on Jan. 9 to run for mayor, she submitted her occupation as “president, board of supervisors,” with “acting mayor/supervisor” as her alternative (the Department of Elections approved her use of the latter title two days later).

On Jan. 23, however, Breed was acrimoniously voted out of her position by six of her board colleagues, in favor of Supervisor Mark Farrell.

And yet, Breed’s ballot designation remains “acting mayor/supervisor” — a title that, by the time of the June 5 election, will have been inaccurate for the better part of five months. (Leno, a former supervisor, assemblyman and state senator, has been out of office long enough that he has been relegated to listing himself on the forthcoming ballot as “small businessman.” And yes, he’s peeved about this.)

When we asked Breed in January if she would proactively change her ballot designation to one that accurately represents her current position, she scoffed at the notion. “No!” she exclaimed. “Why would I?”

The advantages of incumbency — even faux incumbency — are significant. And yet, a judge potentially handing down a ruling that dings a candidate for attempting to dupe the voters would be embarrassing. At the very least.

Leno’s writ invokes California Elections Code Section 13314, which states that “an elector” — i.e. 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 …” It also notes that Elections Code Section 13107 (b)(1) allows elections officials to reject ballot designations that “would mislead the voter.”

It offers a number of legalistic justifications why Breed’s designation fails the criteria set forth in section 13107 — parsing definitions of “occupation” and “principal profession,” for example, arguing that “Breed held the position of ‘Acting Mayor’ for a mere 42 days. Therefore her tenure in that position was too short for it to constitute a ‘principal’ profession or occupation.”

Then it states the obvious: “Breed is not the Acting Mayor. She has not held that position since January 23, 2018. … If Breed’s ballot designation is not changed it will cause irreparable harm to Petitioner [Leno] and the voters of San Francisco by creating public confusion and misinformation concerning Breed’s actual profession, vocation, or occupation, leading the voters to believe that she is acting as San Francisco’s mayor when she is not.”  

Leno’s writ accuses her of failing “to take any steps to correct her misleading ballot designation” and states that Arntz “has refused to change Breed’s ballot designation absent a court order directing him to do so.”

San Francisco’s ballot could potentially go to print as soon as March 10, after judicial candidates are finalized. Not surprisingly, cases such as this one are heard and ruled on rapidly. Considering the aforementioned election codes, what’s pivotal here is if the judge determines that listing Breed as “acting mayor” when she clearly is not constitutes an “error” — and would “mislead the voter.”

Experts Mission Local consulted earlier this month felt Leno had a strong case, but not a slam dunk.

“If I were a judge, I might … say it’s a misleading title,” University of California at Davis law professor Floyd Feeney told us. “Would somebody who is reading this read it to mean she is the acting mayor now? I think there is some risk to that.”

Stanford University 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 said. “But, you know, it doesn’t go down in the annals of history as one of the great misleading ballot designations ever.”

Calls to Breed and her campaign consultant, Maggie Muir, were not immediately returned Tuesday afternoon.  

Update, 5:14 p.m.: Breed’s spokeswoman, Tara Moriarty, accused Leno of “working hard to deflect attention from the real issues facing San Franciscans,” and added that Breed would be fine with her designation being changed.

“To be clear — this is not Board President Breed’s call,” reads Moriarty’s statement.  “President Breed was Acting Mayor when papers were filed; she has no problem being listed as President of the Board of Supervisors. But the law is clear: Per Elections Code section 13017(g) a candidate is not permitted to change his or her ballot designation after the deadline for filing nomination papers. It’s up to the Department of Elections to defend its decision on the ballot designation.”

Joe Eskenazi

Joe was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. “Your humble narrator” was a writer and columnist for SF Weekly from 2007 to 2015, and a senior...