Notes From Babel

Cooley: Misleadingly Accusing Eastman of Being Misleading

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This afternoon, the Superior Court for the County of Sacramento denied California Attorney General candidate John Eastman’s ballot job description as “Assistant Attorney General” or, alternatively, “Special Assistant Attorney-General.”  While I believe the court got it wrong, the treatment of the story in today’s Sacramento Bee—following lock-step with the invective of Steve Cooley, Eastman’s opponent for the Republican nomination—is particularly troubling.  There appears to be no dispute that Eastman is, in fact, South Dakota’s “Special Assistant Attorney General.”  See his appointment papers here.  So why does Cooley’s campaign insist on calling Eastman’s designation a “blatantly false and misleading ballot designation in an effort to fool the voters“?

Since the attack on Eastman is apparently based on what he didn’t say, it is important to note what his attackers don’t say.  They don’t acknowledge the three-word limit on job descriptions under Elections Code section 13107(a)(3).  They don’t acknowledge that Steve Cooley objected to Eastman’s alternative job description of “Special Assistant Attorney-General” as violating the three-word limit.  According to Cooley, “Attorney General” must be counted as two words, leaving only one word left to qualify the designation.  What to choose?  He is certainly not the “South Dakota Attorney General.”  He is, however, its “Special Assistant Attorney General.”

(Note, however, that Section 13107 suggests that “attorney-general” might constitute just one word, as it permits hyphenated words that have appeared as such in dictionaries of common use in the past 10 years.  Again, Cooley rejected this argument, as did, apparently, the Secretary and Judge Timothy Frawley.)

Thus, Eastman didn’t say “South Dakota” because he was constrained by a strict three-word limit on his ballot designation.  Cooley and others attacking Eastman, however, were not so constrained.  Those attacking Eastman purposefully did not disclose the limitations that the Elections Code imposes.  This was, and is, misleading.

Also, once the limitations under the Elections Code are made clear, it is not the least bit “spurious” that Eastman selected as his primary and first alternate job designations “Assistant Attorney General” and “Special Assistant Attorney-General.”  According to Cooley, who, again, took the position that “Attorney General” must be counted as two words, Eastman could not have indicated his job in any manner that would not have left him subject to Cooley’s invectives and accusations of attempting to mislead voters.  Cooley’s is an obviously absurd and opportunistic reading of the law.

Moreover, even if the Secretary of State, Judge Timothy Frawley, and Steve Cooley could have been satisfied that “Assistant Attorney-General, South Dakota” did not violate the three-word requirement, this would have been even more misleading to voters.  Eastman, in fact, is not a South Dakota resident, as such a title would imply.  The inclusion of geographical qualifiers—which has never been a requirement of any California candidate until now—would present irrelevant and potentially misleading information to voters.

At any rate, Eastman’s challenge to this unprecedented application of a statute was certainly not “frivolous,” as many have accused.  In fact, today’s ruling poses concerns for future candidates.  If your current job is akin to the office you’re running for, your opponent may challenge your job designation as “misleading” for failing to include a geographical qualifier—even if its inclusion would cause your entire job designation to run afoul of the three-word rule.  Today’s ruling provides an invitation to bring truly frivolous challenges to ballot designations.

At any rate, Eastman’s designation will now be “Constitutional Law Attorney.”

UPDATE: The LegalPad California Law Blog also gets tripped up on the actual facts and law involved here.

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Written by Tim Kowal

April 1, 2010 at 7:59 pm

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