San Clemente Councilman Robert “Bob” Baker 1 (R) is being challenged for re-election by Businessman Robert “Bob” Baker 0 (D).

Ordinarily, we’d run press releases and op-eds under the “Newsletter Reprint” account, but this is such an odd situation that I’m providing separate commentary here.

I’ve previously written about San Clemente Councilman Robert “Bob” Baker (R) being challenged by businessman Robert “Bob” Baker (D).

Elections Code Section 13118 provides that in cases of identical names, the candidates will select a distinguishing mark on a first-come, first-served basis, and that “The distinguishing mark shall be a number and shall be printed in large boldface type at the left of the name on the ballot.”  The incumbent Baker filed the number selection paperwork first and picked the number 1.

Sounds easy enough, right?  Well, not exactly.

The challenger Baker selected the number 0.  Whichever Baker has the lower number gets listed first on the ballot.  The Orange County Registrar of Voters and San Clemente City Clerk determined the number 0 is lower than the number 1 (amused/sad sidenote: only in election law does that need to be determined).  Therefore, the Registrar and Clerk concluded that 0 Baker would be listed before 1 Baker.

Had I been in the second Baker’s shoes and couldn’t get the number 1, I would have selected the number googol (yes, that’s how it’s spelled):
10,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

There is nothing in the Elections Code stopping a candidate from selecting googol to distinguish themselves from an identically-named candidate.

The Robert “Bob” Baker issue in San Clemente shows that the 85-year-old process for distinguishing identically-named candidates needs reform.

Perhaps identically-named candidates should be forced to use middle names if they both have middle names and the middle names are different.  (By the way, it’s Donald for Councilman Baker and John for Challenger Baker.)

Another option is to require the Clerk/Registrar randomly select a positive integer between 2-9 for each identically named candidate.  We already do a ballot order lottery in California to randomize the alphabet, so it would make sense to have a random number assigned to identically-named candidates.  The rationale on the range 2-9 is you’d keep it at a single-digit number without having the number connotations that come with 0 or 1.  (Obviously, there’d need to be a backup clause in case a dozen people with the same name ran: perhaps, a random positive integer between 21-99 could be selected, so everyone has a two-digit number without the connotations attached to the numbers 10 or 13.)

Nonetheless, the two Robert “Bob” Bakers of San Clemente must proceed under the current rules.  Barring judicial intervention that declares 0 is not a number for purposes of the Election Code (it could happen: after all, the U.S. Supreme Court case of Nix v. Hedden determined that while the tomato is botanically a fruit, it is legally a vegetable), Councilman Baker has implied a messaging strategy on the numbers in his his press release: calling challenger Baker a zero.  With the positive connotation of the number 1, the incumbent Baker could promote himself as “San Clemente’s #1 Choice” or something like that while continuing to blast the other Baker as a zero, with that number’s negative connotation.

Incumbent Bob Baker made a smart pick with 1 but just had the misfortune of facing off against a more Machiavellian Bob Baker, who picked 0.

We’ve received no word from the other two San Clemente Robert Bakers (one Republican, one Democrat) on which Robert Baker they’re backing, though since there’s two Council slots available, they could back both Bakers on the ballot.

I must say that I can sympathize with Councilman Baker: there are 21 Chris Nguyens and 62 Christopher Nguyens registered to vote in Orange County.  There were even 2 Chris Nguyens in my class in college (one from the Bay Area and another from Florida).

Here’s the press release from incumbent Robert “Bob” Baker 1 that came over the wire on Friday…

SAN CLEMENTE CITY COUNCILMEMBER BOB BAKER TAKES ISSUE WITH BALLOT POSITIONING SHENANIGANS
Incumbent Councilmember “Bob Baker 1” Says Sham Challenger “Bob Baker 0” Gamed the System To Gain an Unfair Advantage.

Robert “Bob” Baker  (“Bob Baker 1”) is seeking reelection to the San Clemente City Council this November.  A second Robert “Bob” Baker (“Bob Baker 0”) has appeared out of thin air to challenge his namesake, leading voters to ask “Will the real Bob Baker please stand up?”

The California Elections Code calls for similarly named candidates to use numerical distinctions to differentiate themselves for the voters.  City Clerk Joanne Baade is listing the Bob Baker who chose the lowest number to appear first among the two Bob Bakers on the ballot.  This is where the situation gets “curiouser and curiouser” like something out of Alice in Wonderland.

The incumbent Bob Baker, who was the first Baker to file his candidacy papers and to select a number, chose the number “1,” reasonably concluding that he had secured the first, and thus lowest, number and would appear above the newcomer Bob Baker on the ballot.  The new Bob Baker, however, instead of logically choosing any number from 2 upward, was allowed to select “0.”  The story should have ended there, with the Clerk rejecting the Johnny-Come-Lately Baker’s selection and requiring him to choose number 2 or any other positive integer besides 1.

But no, instead, the Clerk issued a statement that “Robert ‘Bob’ Baker No. 0 will appear immediately before Robert ‘Bob’ Baker No. 1 on the ballot because zero is a lower number than one.”  Really?

Political scientists have proven, and the California Supreme Court has acknowledged, a “primacy” effect in which the higher up a candidate’s name appears on the ballot, the more likely that candidate is to gain extra votes (often in the amount of several percentage points) over and above those whose names appear lower on the list.  So ballot position matters, which is why the Secretary of State performs a “randomized alphabet drawing” for each election.

Bob Baker 1 expressed surprise at this development, stating “Someone can be 1^st in line, but no one can be 0st in line, can they?”  “And do winners of races come in 1^st place or 0^th place?”  Baker 1 surmised that another candidate recruited Baker 0 to run in order to confuse the voters and dilute Baker 1’s votes.  “San Clemente’s voters are quite intelligent,” said Councilman Baker, “and they will see through this charade and vote for the Bob Baker who doesn’t play games with the electoral process but merely wants to continue serving the City as a member of the Council.”  A voter, who did not want her identity revealed, said “Having served in the U.S. Navy for 7 years and as a commercial pilot for 30 years, Bob Baker 1 is a hero, whereas Bob Baker 0 is a “zero.”

Election law expert Brad Hertz of the Sutton Law Firm, who teaches Election Law at Chapman University Law School and is former President of the California Political Attorneys Association, said “The City Clerk’s actions make no sense, and Bob Baker 0 should not have been allowed to designate himself as such.”  Hertz pointed to Elections Code section 13117, which states that “… all state measures … shall be numbered in a continuous sequence, commencing with the number “1” and continuing in numerical sequence for a period of 10 years from the year of commencement.  At the completion of a 10-year cycle, the numbering sequence shall recommence with the number “1” at the next election….”  Hertz, who commonly litigates election law matters, and with whom Baker 1 has consulted, said “If common sense does not carry the day, then at least this analogous Elections Code section should guide the City Clerk to realize that “1,” not “0,” is the first and lowest number in the context of ballot position.”