Candidates often go to great lengths to talk themselves up in the official ballot materials that go out to the voters who will decide their election.
Sometimes they even attack their opponents while presenting their argument for election.
Yet as the June primary approaches, candidates are increasingly getting their statements scrubbed for truthfulness.
In recent weeks, a series of judges are considering the question.
How truthful do an official ballot statement and title need to be?
Oftentimes, they’re the only statements many voters see before casting their ballots.
This week, Judge Nathan Scott is considering that very issue in this June’s highest-stakes race: the battle to become the next district attorney of Orange County.
Incumbent DA Todd Spitzer is asking the court to delete a key part of his opponent Peter Hardin’s official ballot statement – which would go out to all voters in Orange County – one that describes the DA’s office as “plagued with scandals.”
The statement in question?
“The District Attorney’s office is plagued with scandals, from rampant sexual harassment and racism that has undermined the prosecution of dangerous offenders, to pay-for-play political corruption and criminal misconduct. Furthermore, a man that sexually harassed multiple women was promoted after allegations of his misconduct were reported.”
Spitzer’s attorney, who challenged the statement in court Monday, says Hardin’s pitch to voters violates state laws requiring such statements to not refer to other candidates or be misleading or false.
“The District Attorney’s Office is not ‘plagued with scandals,’ ” says a court filing by Spitzer’s attorney, Mark Rosen, adding that accusations “have all been investigated and rejected.”
Yet a county HR investigation did not clear Spitzer of attempting to retaliate against the first female prosecutor who had come forward about harassment at the DA’s Office by Spitzer’s friend Lary LoGalbo – harassment that was confirmed by the county’s own internal investigation.
After Spitzer learned on Jan. 21, 2021 that the victim had filed a harassment claim, investigators wrote that Spitzer went on the attack – instructing the prosecutor’s supervisor to “write up” the victim in her performance evaluation for lying in her email reporting the harassment. The supervisor refused to do so.
And a second county HR investigation found that Spitzer violated county policies by sending the original harassment investigation – which contained details that can identify the victims – to every employee in his office, and by trashing one of the victims in an interview with Voice of OC.
A DA investigator report also documented prosecutors’ concerns that Spitzer compromised a mass shooting case by having a problematic conversation with a witness and then making misleading statements to a DA investigator that omitted important information about it from the defense. Spitzer denies the allegations.
As for referring to other candidates in ballot statements, Spitzer’s court filing says that’s not allowed under the law.
But Hardin claims that’s exactly what Spitzer himself did when he last ran for DA in 2018, when he referred to the “snitch scandal” of Spitzer’s opponent in that election, incumbent DA Tony Rackaucaks.
“From rampant sexual harassment to racism and pay-to-play corruption, voters are entitled to hear why we need new leadership,” Hardin said in a statement Monday.
The issue is now headed to a Friday hearing before Judge Scott, who’s aiming to issue a ruling by the end of the day so county election officials have clarity in time for printing the election materials.
Ballot statements for countywide seats like DA come at a cost – about $12,000 or $23,000, depending on how many words – which can require candidates to raise large sums of money in order to be viable.
Defending those statements in court also costs money, for attorney fees.
Voters can also go to court to challenge candidates’ ballot titles – the job position that appears next to their name – as well as whether they meet the legal qualifications to run.
Aside from Spitzer’s challenge of Hardin, this election is featuring several other ballot challenges.
49th District Congressional candidate Brian Maryott’s ballot title of “Certified Financial Planner” has been overruled by the California Secretary of State’s Office, after his fellow Republican challenger Lisa Bartlett alleged it was misleading because he hasn’t been a practicing CFP since 2018.
Instead, Maryott will appear on ballots as “Businessman/Nonprofit Executive,” according to the state.
Santa Ana Mayor Vicente Sarmiento’s ballot statement is being challenged for mentioning his OC Democratic Party endorsement for his county supervisor run, despite the seat officially being non-partisan.
Superior Court judge candidate Ray Brown also is facing a challenge, over a reference in his ballot statement to serving for “9 years as a Temporary Judge for the OC Superior Court.” The legal challenge alleges it’s misleading because the position is unpaid and violates rules against mentioning temporary judge positions in campaign promotions.
And judge candidate Benjamin Stauffer is going to court to challenge the county Registrar of Voters’ rejection of him referencing his prior work as a DA prosecutor in his ballot title – something former prosecutor Brahim Baytieh is being allowed to do in his ballot title.
The period to challenge candidates’ ballot info ended on March 21.
Sometimes, ballot info has been removed after being challenged in court.
Spitzer himself prevailed in challenging a ballot statement in 2012, with former county Public Administrator John S. Williams agreeing to change his ballot statement for a community college board position and pay Spitzer’s attorney fees after Spitzer took him to court.
In 2014, then-county supervisor candidate Michelle Steel lost her ability to call herself a “Taxpayer Advocate/Businesswoman” on the ballot, after Judge Franz Miller ruled they did not accurately describe her main job. She was instead listed on ballots as a “Board of Equalization Member.”
Other times, candidates emerge victorious from court battles.
During the last DA election in 2018, candidate Lenore Albert-Sheridan was challenged in court for having a suspended law license, despite candidates being required to be able to practice law.
Judge Craig Griffin allowed her to stay on the ballot, ruling Albert-Sheridan could pay her fines and end her suspension before the primary election. But the judge ruled she could not call herself a “civil rights attorney” as her ballot designation, so she did not have a designation on the ballot.
Albert-Sheridan’s law license was later reinstated just before the June 2018 election, and applied retroactively to March 16 of that year, which was before Griffin’s ruling.
Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.