You Can Call Me Al: Regulating How Candidates' Names Appear on Ballots

JurisdictionUnited States,Federal
CitationVol. 99
Publication year2021

99 Nebraska L. Rev. 848. You Can Call Me Al: Regulating How Candidates' Names Appear on Ballots

You Can Call Me Al: Regulating How Candidates' Names Appear on Ballots


Peter Nemerovski [*]


ABSTRACT

In electoral politics, names matter. Studies and anecdotal evidence show that candidates whose names suggest a certain ethnic heritage- for example, an Irish-sounding surname in Chicago, or a Hispanic name in South Florida-outperform candidates without such names, and that "American-sounding" names and names with positive connotations can give candidates a leg up. Therefore, candidates for public office often seek to run under the name they regard as most electorally advantageous. Election boards, secretaries of state, and ultimately courts are often called upon to decide whether a particular candidate can run for office under a particular name.

This Article looks at various courts' efforts to resolve legal challenges concerning a candidate's eligibility to run for office under a particular name. Part II explains how different courts across the United States have resolved controversies over candidate names. Part III evaluates the various approaches reflected in the opinions discussed in Part II. Part IV discusses what a workable and fair system of regulating candidate names would look like, proposing that candidates should be allowed to appear on the ballot under whatever name they want unless doing so would result in unnecessary confusion between two candidates or some kind of deception, fraud, or bad faith. Part V explores the roles of various government actors in regulating candidate names, arguing that with clear legislative guidance, most controversies can be resolved by election boards and secretaries of state, with court intervention available as a last resort.

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TABLE OF CONTENTS


I. Introduction .......................................... 849


II. Adventures in Candidate Names ...................... 852
A. Married Names, Maiden Names, and Other Former Names ............................................ 852
B. Nicknames ........................................ 858
C. Diminutives ....................................... 863
D. Middle Names ..................................... 865
E. Professional Titles and Information ................ 866
F. "Americanization" ................................. 868
G. Confusion with Another Person .................... 870


III. Evaluating Judicial Resolutions of Candidate Name Controversies ......................................... 872


IV. Best Practices for Regulating Candidate Names ....... 878


V. Implementing Best Practices: Who Decides? ........... 891


VI. Conclusion ............................................ 894


I. INTRODUCTION

On May 25, 2010, a man named Daniel Mark Severson filed an affidavit of candidacy for the office of Minnesota secretary of state. [1] In the affidavit, Severson listed his name as Dan "Doc" Severson. [2] On June 29, 2010, a woman named Carol Weiler petitioned the Supreme Court of Minnesota to order the current secretary of state to omit the nickname "Doc" from the ballot on the grounds that Severson was not known in the community as "Doc." [3]

At issue in Weiler was the following statutory language: "An affidavit of candidacy must include a statement that the candidate's name as written on the affidavit for ballot designation is the candidate's true name or the name by which the candidate is commonly and generally known in the community." [4] Based on the statute, the Minnesota Supreme Court concluded that if a candidate wants to use a name that is different from his "true name," "the alternate name must be one that the candidate has routinely used, before he files his affidavit of candidacy, to identify himself to the public." [5] The court continued: "The alternate name also must, at a minimum, be the name by which the candidate is broadly and widely known to members of the public before the candidate submits the affidavit of candidacy at issue." [6]

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Turning to the evidence, the court found that Severson had become known as "Doc" while serving as a Navy pilot twenty-seven years earlier. [7] Severson, who was a state representative at the time of the litigation, also filed affidavits from a legislative chaplain and two legislative colleagues stating that they knew him and referred to him as "Doc." [8] On the other hand, Severson had run for the state legislature as "Dan," not "Doc," in four previous elections. [9] He used the names "Dan" and "Daniel" on his voter registration and filings with the Campaign Finance and Public Disclosure Board. [10] He submitted editorials to local newspapers using the name "Dan." [11] And before Severson filed his affidavit of candidacy for secretary of state, his campaign website identified him as "Dan." [12]

The court concluded: "Rather than being commonly and generally known as 'Doc,' the weight of the evidence establishes that Severson is commonly and generally known in the community as 'Dan' or 'Daniel.'" [13] Accordingly, the court ruled that Severson could not use the name "Doc" on the general election ballot. [14]

The Weiler case raises a number of interesting questions: Under what circumstances, if any, should nicknames of candidates for public office be allowed on the ballot? How much deference should we give to candidates' choices about how their names will appear? How should courts determine whether a candidate is "commonly and generally known in the community" by a particular name or nickname? Is this something we really want courts analyzing in the first place? Is there any harm in allowing someone like Daniel Severson to run for Minnesota secretary of state as "Doc"? If we allow Daniel "Doc" Severson to appear on a ballot, must we also allow "Shelvie Prolife Rettmann," who, like Severson, was a candidate for office in Minnesota? [15]

It turns out that the Weiler case is hardly unique. Candidates for public office often seek to run under names they consider electorally advantageous. Nicknames like the one in Weiler are but one of many types of additions, subtractions, and modifications that candidates have made to their names.

In addition to nicknames, candidates frequently request that their listed names include a surname or given name suggestive of a particu-

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lar ethnic heritage. [16] In Illinois, for example, "[t]he advantage of an Irish-sounding name in Cook County has long been accepted as gospel truth, so much so that several past judicial candidates with non-Irish names have legally changed their names to suggest Irish ancestry." [17] In his study of Cook County judicial elections, Albert Klumpp found that having an Irish-sounding name gave candidates a 10.5% advantage over candidates without such names. [18]

Similarly, Justice Rebecca Wiseman of the California Court of Appeal observed that in judicial elections, "voters are taking cues in part from what they believe they know about a judicial candidate based on his or her name, including such characteristics as gender, ethnicity, religious affiliation, and whether their name sounds 'judicial.'" [19] In Justice Wiseman's study of judicial retention elections in California in the 1980s and 1990s, judges with Hispanic names received 1.58 percentage points less of the vote than judges without Hispanic names. [20] Wiseman also found that judges whose names had a "positive connotation," such as "Best, Lillie, or Armstrong," performed 5.7 percentage points better than judges whose names had a "negative connotation," such as "Gaut, Rylaarsdam, or Harry Hull." [21]

As Professor Derek T. Muller observed, "The ballot is capable of displaying to voters many elements of a candidate's identity, even with the relatively simple listing of a candidate's name." [22] Few voters "are willing to invest significant time and energy to find and understand information about candidates for public office." [23] Instead of educating themselves about the candidates and issues, "voters use informational shortcuts-heuristic cues-to aid them in their decisionmaking." [24] These cues include party affiliations and endorsements by interest groups, newspapers, celebrities, politicians, and

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other opinion leaders. [25] "Other heuristic cues focus on a candidate's personal characteristics such as likeability and personality." [26] The candidates' names and party affiliations provide "the strongest cues for voters seeking shortcuts." [27] In primaries where all the candidates are members of the same party and in nonpartisan elections, the candidates' names provide the strongest cues.

This Article attempts to bring clarity to what has been a very chaotic and inconsistent body of law. Part II looks at how courts and other government actors, including election boards and secretaries of state, have resolved controversies over how candidates will appear on the ballot. Part III evaluates the various approaches reflected in the opinions discussed in Part II. Part IV discusses what a workable and fair system of regulating candidate names would look like, proposing that candidates should be allowed to appear on the ballot under whatever name they want...

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