The only-in-California rule that’s misinformed voters for 93 years

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In 1999, a man named Mark “SuperBooty” O’Hara tossed his posterior into the ring and ran for mayor of San Francisco. Rest assured, Department of Elections officials took very seriously the self-applied sobriquet “SuperBooty,” and determined that, yes, this was a name he was actually known by while performing in a 15-piece funk band called … SuperBooty.

They also scrutinized his ballot designation, the three words every candidate for office in California may place on the ballot to describe him or herself: “Funk vocalist, animator.” 

Ballot designations can be a cut-throat affair and the subject of intense scrutiny, legal action and word-parsing at a near-atomic level. But it doesn’t seem to have played much of a role for SuperBooty: He received 919 votes, a fair few behind eventual winner Willie Lewis Brown, Jr. (who chose the more straightforward ballot designation of “mayor”). His quest for elected office denied, Mark “SuperBooty” O’Hara now sells nail polish in booty-shaped bottles. 

Twenty-five years later, self-described lawyer, banker, investor, venture capitalist (and former supervisor and mayor) Mark Farrell has entered the mayoral race. And, for his ballot designation, he has chosen “small-business owner.” 

Now, that’s a shock. But it ain’t a surprise: A poll from earlier this year obtained by Mission Local found that 64 percent of respondents had a very positive opinion of “small business,” and 28 percent more had a positive opinion. Overall, that’s a 92 percent approval rating, which probably exceeds “sex,” “chocolate” or even “breathing.” 

“Small” businesses always polls well, but “business” does not; within the same 2024 poll, “downtown business” had a 23 percent “very favorable” rate, and the Chamber of Commerce only scored 6 percent. 

We are told the delta between “Small-business owner” and “venture capitalist” is nearly 50 percent. 

So, that explains everything, really. When queried why Farrell is entitled to pick this ballot designation, the Department of Elections referred us to the federal Small Business Association definition of a “small business:” Up to 1,500 employees and $40 million in revenue. There is, perhaps, not a single voter in all of San Francisco who’d spontaneously describe a business employing 1,500 people and banking $40 million annually as “small,” but these are the terms the Department of Elections is opting to apply. And this is a bit counterintuitive: When it comes to awarding contracts, the city of San Francisco has a far, far, far more constrained definition of a “small business” than the one offered by Elections.

Opponents have until June 24 to file a challenge. But it’s uncertain that a serious effort will be made, because the law is incredibly broad here: “The term ‘businessman’ could encompass anything from door-to-door magazine salesman to the president of IBM,” noted a California government lawyer in a 1994 state-level suit regarding a ballot designation. “But it is routinely accepted as a ballot designation without the requirement of further elaboration.”  

That seems germane. That lawyer won that case. And the Elections Department’s proffered definition of “small business” is big.  

Well, nothing new under the sun: Since 1931, when California began putting candidates’ professions, vocations, or occupations on the ballot, untold numbers of office-seekers have found amazing ways to make their jobs seem exciting, new and palatable to voters, who may base their decision heavily on this ballot designation, especially in low-information elections. That’s how many-term incumbents, bankers, lawyers and venture capitalists become “farmers,” “small businessmen” or even “farmer/small businessman.” Candidates’ attempts to shoehorn as many appealing professions as possible onto a ballot designation recall the jarring description of Samuel Adams printed on beer labels: “Brewer-Patriot.”  

Even veteran California election officials who spoke with Mission Local were surprised to learn that ballot designations are an only-in-California wrinkle. Their counterparts in 49 other states don’t have to deal with this: The Sacramento Bee reports that the National Conference of State Legislatures could not find any other state that allows professional descriptions on the ballot of the sort Californians have taken for granted for close to a century.

Administering and adjudicating these ballot designations is a major lift for registrars in all California cities and counties and for the Secretary of State. Is it worth it? Are voters better informed by this only-in-California rule? 

Again and again, we received a succinct answer: No. 

Perhaps the most generous way to sum up L’affaire Mark Farrell is Don’t hate the player. Hate the game. He’s only doing what the system has allowed more or less since its inception. 

Pete Nemerovski is a law professor at High Point University in North Carolina and the author of a 2021 academic paper lambasting California’s ballot designation policy, which is clearly his white whale. As such, he has amassed a compendium of bizarre and problematic ballot designations. Perhaps most illustrative of the twisting of an ostensibly straightforward ballot designation into an on-ballot campaign ad and dog whistle are the increasingly savage titles deployed by law-and-order prosecutors running for judge. These include: “Hardcore Gang Prosecutor,” “Sex Crimes Prosecutor,” “Major Narcotics Prosecutor,” “Child Molestation Prosecutor,” “Violent Crimes Prosecutor” and “Sexual Predator Prosecutor.” 

A lawsuit forced one aspirational judge to change his designation from “Gang Murder Prosecutor” to “Gang Homicide Prosecutor.” That showed ‘em. 

“It drives me crazy,” Nemerovski tells me. His present home state of North Carolina forbids candidates from including any “title, appendage or appellation indicating rank, status, or position” on their ballot designation, and Nemerovski thinks it’s far better that way.

California’s policy is “totally disingenuous. It allows wealthy landowners to call themselves ‘farmers’ when they don’t know the first damn thing about farming. For most of its history it has been exactly what it is now: A contest to see who can come up with the most electorally advantageous designation.”

Why did California, and only California, choose to do things this way? For many years, this has been described as a means of discerning candidates with identical or similar names. And that’s true, to a point. In 1931, lawmakers told the press that this was “a means whereby an incumbent can so designate himself upon the ballot, while an opponent can state his occupation as John Doe, attorney.”

So, it was an incumbent-protection act. And, within a generation or two, it burgeoned into the “World’s Greatest Lying Contest.” That’s how California voting historian Bruce C. Bolinger described it in 1977. Yes, by 1977, all of the problems with this only-in-California law were resplendently clear. And we’ve done nothing. In fact, things have gotten worse; polling has only grown more advanced, and poll-testing ballot designations is a virtual cottage industry. 

Ryan Ronco could tell you as much. He’s a 30-year election professional who has been the registrar of Placer County since 2016. Ronco is also the chair of the California Association of Clerks and Elections Officials. 

Poring over ballot designations is something that keeps him occupied for days and days; he estimates he usually rejects a little less than 10 percent of them. Like most every California registrar or elections director, he takes his job extremely seriously. He follows all the applicable laws. But, in this case, he’s not certain that his diligence is serving the people well. 

“In my opinion, we are worse-served for having this information on the ballot,” he says. “I think the ballot is, and forgive my term, a sacred space. It really should be as free from influence as any place can be. It’s not helpful if people can learn how to manipulate voters by using language that can sound good in certain instances but may not necessarily be everything you need to know about a particular candidate.”

“So,” he continues, “I don’t think voters are well-served by ballot designations. But it’s something I’ve been dealing with for 30 years.”

When you call Jerry Rubin on the phone, he immediately says, “Not that Jerry Rubin.” 

No, Rubin is not the founder of the Yippie movement and Chicago Seven defendant — who, notably, died in 1994. Rather, he’s the lifelong peace activist and serial Santa Monica City Council candidate who, in 2000, was told he could not use “peace activist” as his ballot designation.

He argued his case all the way up to the Ninth Circuit Court of Appeals, but did not prevail. So, he took a different tack. Twenty years ago, on his 60th birthday, Rubin gave himself a present: He legally changed his name to “Jerry Peace Activist Rubin.” 

And that is how he appeared on his many subsequent runs for Santa Monica City Council.  

Jerry Peace Activist Rubin insists this wasn’t his plan all along, even if it did work out that way. Rubin, to put it mildly, is not a traditional candidate. But he, too, understands the value of a good ballot designation: “About the only thing people see is your name and the three-word designation,” he says. “It’s important.” 

Since changing his name, Rubin has had no ballot designation at all. And he did not win. But he’s okay with that. “I had a unique campaign,” he says. “I didn’t raise any donations.” 

Well, there you go. That won’t be the case with Mark Farrell. Even still, if things go badly, Farrell can always follow Rubin’s lead: Perhaps San Franciscans would vote for Mark Small Business Owner Farrell. 

Better that than “SuperBooty.”