The Secretary of State will set the field for the 2014 primary election on March 27, when she publishes the Certified List of Candidates appearing on the June 3 primary ballot.  That list includes each candidate’s name and their “ballot designation” – up to three words that identify the candidate’s “principal professions, vocations, or occupations.”

California is one of the few states in America that allows candidates to describe themselves on ballots.  Because this ballot real estate is so valuable – and the opportunities for embellishment so tempting – ballot designations can lead to another staple of California politics:  Litigation.

The theory behind ballot designations is that a description of the candidates’ principal profession, vocation, or occupation leads to a more informed electorate.  Indeed, it is surprising the imagery that three words can evoke.  The 2003 recall election, for instance, gave us Arnold Schwarzenegger (Actor/Businessman), “Mary Carey” Cook (Adult Film Actress), and Kurt E. “Tachikaze” Rightmyer (Middleweight Sumo Wrestler).

A designation is supposed to reflect the profession, vocation or occupation that is both “current” (or undertaken within the past year) and “principal” for the candidate.  This still allows for up to three such principal designations, as with former Senator Bill Emmerson’s economical use of “Dentist/Lawmaker/Educator.”  As with other election-related rules, incumbent officeholders are treated differently – if their official title exceeds three words, they can use the extra words.  Attorney General Kamala Harris, for instance, was designated “District Attorney, City and County of San Francisco” in the 2010 election cycle.

Designations are important not just because they are the last opportunity to communicate to voters before the ballot is cast:  In some cases, they provide the only information a voter may have about a candidate.  Many voters in a school board election may have no idea who the candidates are – would they be more likely to vote for the “Real Estate Developer” or the “Teacher/Child Advocate”?  Indeed, candidates and political consultants assume that ballot designations can make a difference, as low-information voters take cues from designations on government-issued ballots.

This leads candidates to sometimes stretch, which can result in disputes.  Whereas candidates generally can’t sue each other for misleading political ads, they can – and do – sue on the grounds that ballot designations are misleading or do not satisfy the law’s technical requirements.

Here are examples of common areas for dispute:

Volunteer and figurehead positions versus actual occupations.  In one prominent case, a sitting state senator was not allowed to identify himself as a “Senator/Peace Officer” based on his position as a reserve deputy sheriff.  The Court concluded that the senator “had done nothing” in the so-called “peace officer” position and would not do anything (if at all) until after the election, so the designation was not allowed.  “Taxpayer Advocate” and “Educator” are likewise often subject to claims that they describe a candidate’s volunteer or figurehead position, rather than a “real” occupation or profession.  A few key themes emerge from these cases and the rules:  Earning income and owning a business make a big difference in fending off a challenge that a designated occupation does not qualify.

Former Occupations.  Some candidates try to squeeze their former occupations into a qualifying designation.  In one highly publicized dispute from the 2012 cycle, Jose Hernandez, a Fresno-area congressional candidate was accused of trying to “boost his credentials” by using “Astronaut/Scientist/Engineer” as his designation, even though he had retired from NASA and was working as an executive in the private sector.  The judge reportedly observed that Mr. Hernandez was an astronaut for “more than the time spent riding a rocket” and rejected the challenge.  The astronaut lost the election, however, to Cong. Jeff Denham.

Turf protection.  In the 2010 race for Attorney General, career prosecutor and then Los Angeles County District Attorney Steve Cooley challenged the law-enforcement credentials of his two opponents for the Republican nomination.  Mr. Cooley sued Sen. Tom Harman for trying to use “Prosecutor” in his designation based on his participation as a volunteer in a training program run by the Orange County District Attorney’s office.  Separately, Mr. Cooley objected to Professor John Eastman’s request to be called “Assistant Attorney General” based on a special appointment to that position in another state.  Cooley won both cases.  (Disclosure:  The author represented John Eastman in the litigation.)  Interestingly, Cooley himself engaged in strategic use of ballot designations in that election cycle:  He was a “District Attorney” in the primary election and “District Attorney, County of Los Angeles” in the general.

Bradley Benbrook and Stephen Duvernay are litigators and political attorneys in Sacramento.