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304509
MARGARET R. PRINZING, State Bar No. 209482
2 REMCHO, JOHANSEN & PURCELL, LLP
1901 Harrison Street, Suite 1550
3 Oakland, CA 94612
Phone: (510) 346-6200
4 Fax: (510) 346-6201
Email: aw@rjp.com
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Attorneys for Petitioners
6 Paul Buxman, Hope Nisly, and
Daniel O' Connell
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9 COUNTY OF SACRAMENTO
10 (UNLIMITED JURISDICTION)
20 DEVIN NUNES,
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2 pursuant to Elections Code section 13314 and Code of Civil Procedure sections 1085 and 1086 for a
3 writ of mandate commanding respondent ALEX PAD ILLA, Secretary of State of California, to reject
4 real party in interest DEVIN NUNES' proposed ballot designation "U.S. Representative/Farmer," for
5 California's Twenty-Second Congressional District on the ballot for the November 6, 2018 election.
7 PARTIES
8 1. Petitioner PAUL BUXMAN is a United States citizen, over the age of 18, and a
9 resident of and qualified registered voter in the California's Twenty-Second Congressional District.
1O The Twenty-Second Congressional District includes portions of Fresno and Tulare Counties.
11 Petitioner BUXMAN is a farmer who owns and operates a stone fruit farm in Tulare County.
12 2. Petitioner HOPE NISLY is a United States citizen, over the age of 18, and a
13 resident of and qualified registered voter in the California's Twenty-Second Congressional District.
14 3. Petitioner DANIEL O'CONNELL is a United States citizen, over the age of 18,
16 4. Respondent ALEX PAD ILLA is the California Secretary of State and is sued in
17 his official capacity. As the Secretary of State, respondent PADILLA has a duty to administer the
18 provisions of the Elections Code in a manner that fully complies with the law, including the law
19 requiring him not to accept ballot designations that are misleading or otherwise do not comply with the
20 law. Respondent PADILLA is the elections official responsible for overseeing the qualification
21 process for candidates for Representatives in Congress. See, e.g., Cal. Elec. Code§ 8100.
23 County of Fresno. As the county elections official for the County of Fresno, respondent ORTH is
24 responsible for preparing and providing the official ballots to the voters in the County of Fresno, and
25 preparing and distributing the county voter information guide, which contains a facsimile of the
26 official ballot, to voters in the County of Fresno. See, e.g., Cal. Elec. Code §§ 13000, 1330.
28 of Tulare. As the county elections official for the County of Tulare, respondent BALDWIN is
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VERIFIED PETITION FOR WRIT OF MANDA TE
1 responsible for preparing and providing the official ballots to the voters in the County of Tulare, and
2 preparing and distributing the county voter information guide, which contains a facsimile of the
3 official ballot, to voters in the County of Tulare. See, e.g., Cal. Elec. Code§§ 13000, 1330.
5 for re-election to the office of United States Representative, Twenty-Second Congressional District, on
10 9. The proper venue for this action is the County of Sacramento pursuant to
12 CAUSE OF ACTION
13 (Writ of Mandate)
14 10. On or around February 16, 2018, pursuant to Elections Code section 13107.3,
15 NUNES filed a Ballot Designation Worksheet proposing the ballot designation "U.S. Representative/
16 Farmer" with the Tulare County Registrar of Voters. He did not identify any alterative ballot
17 designations. A true and correct copy of NUNES' s Ballot Designation Worksheet obtained from the
18 Tulare County Registrar of Voters is attached to this petition as Exhibit A and is incorporated into this
19 petition by reference.
20 11. This petition challenges real party NUNES ' s use of the ballot designation "U.S.
21 Representative/Farmer." On March 29, 2018, respondent PADILLA released a certified list of the
22 candidates who have qualified for the June 5, 2018 ballot, along with their ballot designations pursuant
23 to Election Code section 8124. That list identified NUNES along with the ballot designation "U.S.
24 Representative/Farmer." On the June 5, 2018 ballot, NUNES appeared on the ballot with this ballot
25 designation. Pursuant to Election Code section 13107(h), the ballot designation used by a candidate
26 for the primary election will also be used for the general election unless the candidate requests a
27 different designation at least 98 days before the general election. Petitioners are informed and believe,
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VERIFIED PETITION FOR WRIT OF MANDATE
1 and on that basis allege that, as of July 31, 2018, the 98th day before the general election, NUNES had
2 not requested an alternate ballot designation from the Tulare County Registrar of Voters or the
3 Secretary of State. Thus, unless modified by this Court, the Secretary of State will certify the
5 Second Congressional District on August 30, 2018, and that designation will appear on the sample
6 ballot and the official ballot that will be distributed to all registered voters in California's Twenty-
8 12. Elections Code section 13107 and its implementing regulations control how
9 candidates may describe themselves on ballot materials. Section 13107 permits candidates to submit
10 one of four designations to appear immediately under the candidate's name in the ballot pamphlet and
11 official ballot: (1) an elective office the candidate holds; (2) the word "incumbent" if the candidate is
12 running for the same office he holds, and was already elected to that office; (3) words designating the
13 candidate's principal profession, occupation, or vocation; or (4) the words "appointed incumbent" or
14 "appointed" and the title of the office which the candidate holds by virtue of appointment.
15 13. Pursuant to Elections Code section 13107 (a )(3 ), if a candidate wishes to identify
16 himself by his profession, he may do so by choosing "[n]o more than three words designating either
17 the current principal professions, vocations, or occupations of the candidate, or the principal
18 professions, vocations, or occupations of the candidate during the calendar year immediately preceding
19 the filing of nomination documents .... " This means that real party NUNES' s ballot designation must
20 describe his current profession, or his profession during 2017, or it otherwise violates section 13107.
21 14. Real party NUNES's inclusion of the phrase "Farmer" on his ballot designation
22 is false and misleading and violates Elections Code section 13107. Petitioners are informed and
23 believe and on that basis alleges that real party NUNES does not currently work as a farmer and he has
24 not earned income from 2007 through the present from farming. These allegations are based on
25 NUNES' s own admissions in official filings and public records, which demonstrate that he is merely a
26 limited partner in two wineries, Alpha Omega Winery, LLC in Napa County, and Phase 2 Cellars, LLC
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VERIFIED PETITION FOR WRIT OF MANDATE
1 15. Elections Code section 13314(a) provides that a writ shall issue upon proof that
2 an error or omission is about to occur in the printing of a ballot, county voter information guide, or
3 other official matter, or that any neglect of duty has occurred, or is about to occur, in violation of the
4 Elections Code or the Constitution, and that issuance of the writ will not substantially interfere with the
6 16. Pursuant to Elections Code section 13107(e), an elections official may not
7 accept a ballot designation that would mislead the voters or otherwise violate section 13107.
8 17. Respondent PAD ILLA' s decision to permit real party NUNES' s ballot
9 designation violates Elections Code section 13107 and constitutes an error and omission under
10 Elections Code section 13314. Similarly, ifrespondents ORTH and BALDWIN print real party
11 NUNES' s ballot designation on the sample ballot or official ballot, it will constitute an error and
13 18. Issuance of the writ will not substantially interfere with the conduct of the
14 November 6, 2018 election. Petitioners are informed and believe, and on that basis alleges that the
15 Secretary of State can accept court-ordered changes to the State Voter Information Guide for the
16 General Election until August 30, 2018. August 30, 2018, is the deadline for the Secretary of State to
17 transmit to each county elections official a certified list of eligible candidates for the general election,
18 along with ballot designations for the candidates. Cal. Elec. Code § 8148. Because this Court can
19 issue this writ prior to August 30, 2018, there will be adequate time to incorporate any changes to real
20 party NUNES' s ballot designation in response, and this writ will not substantially interfere with the
22 19. Code of Civil Procedure section 1086 requires that a "writ must issue in all cases
23 where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." Petitioners are
24 informed and believe that respondent PADILLA has accepted real party NUNES's ballot designation
25 and will not change it without a court order. Consequently, there is no plain, speedy or adequate legal
26 remedy in the ordinary course of the law for preventing a false and misleading ballot designation from
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VERIFIED PETITION FOR WRIT OF MANDATE
1 20. Petitioners' statutory rights, and the right of voters in California's Twenty-
2 Second Congressional District to be accurately informed about the candidates who seek to represent
3 them, and not to be misled by materials issued by the State and counties, will be irreparably injured if
4 real party NUNES is permitted to use the ballot designation "U.S. Representative/Farmer" or any
7 I. That this Court issue a writ of mandate prohibiting respondents PAD ILLA,
8 ORTH, and BALDWIN, and any election official acting under their direction or control, from using
9 the designation "U.S. Representative/Farmer" or any similar designation, as the ballot designation for
1O real party NUNES on the Certified List of Official Candidates or on any other ballot materials for the
13 3. For such other and further relief as the Court deems just and equitable.
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18 By: ~--~-
KndrewHarriswer
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Attorneys for Petitioners Paul Buxman, Hope Nisly,
20 and Daniel O'Connell
(00350155-2)
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VERIFIED PETITION FOR WRIT OF MANDA TE
1 VERIFICATION
3 J am one of the petitioners in this action. I have read the foregoing Petition for Writ
4 of Mandate and know the contents thereof. I certify that the same is true of my own personal
5 knowledge, except as to matters stated on information and belief, and as to those matters, I believe
6 them to be true.
7 I declare under penalty of perjury that the foregoing is true and correct. Executed this
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VERJFICATION
1 VERIFICATION
3 I am one of the petitioners in this action. I have read the foregoing Petition for Writ
4 of Mandate and know the contents thereof. I certify that the same is true of my own personal
5 knowledge, except as to matters stated on information and belief, and as to those matters, I believe
6 them to be true.
7 I declare under penalty of perjury that the foregoing is true and correct. Executed this
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VERIFICATION
1 VERIFICATION
3 I am one of the petitioners in this action. I have read the foregoing Petition for Writ
4 of Mandate and know the contents thereof. I certify that the same is true of my own personal
5 knowledge, except as to matters stated on information and belief, and as to those matters, I believe
6 them to be true.
7 I declare under penalty of perjury that the foregoing is true and correct. Executed this
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8 _ _,___ day of August, 2018, at tP.£:SNQ ,California.
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10 ~ __Q O'L .JJ
DANIEL O'CONNELL
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VERIFICATION
EXHIBIT A
Ballot Designation Worksheet
Pursuant to California Elections Code section 13107.3 and California Code of Regulations section 20711, this entire
form must be completed, or it will not be accepted and you will not be entitled to a ballot designation. DO NOT
LEA VE ANY RESPONSE SPACES BLANK If information requested is not applicable, please write NIA in the
space provided. Otherwise the information MUST be provided. Upon filing, this worksheet will be a public re<p'.fLED
r Candidate Name: Dev·, 0 G. Nu11e5 . . :,
Office: (/ls~ L0,"\9 ,es.5 )..:1 . FEB l 6 2018
Home Address:
r."'\ L/' c_-. ">
o'- J J v. ,l , I n ,,,.,,,,:,1,~'-'t._~.t._f/ ct:v 7'-/
f(~tv enr,(ll fJl't cJ e_, v~~Ma:11
TIJLMIB coUNTY
REGfSJ!ttAR OF VOTERS
-~
0
Address: --'-fJ-'-J+------------------------------
j Home Address: _ _AJ___._A..___ _ _ _ _ _ _ _ _ _ _ _ _ _ E-Mail: ____N_..1.____ _ _ _ _ _ __
~E Business Address:---'/'-'V,'--~-'-----------------------------.--- -
! Mailing Address: ___/1)_/4______________________________
(a) Your current principal profession(s),. vocation(s), or occupation(s) [maximum total of three words, separated
by a"/"]
(b) The full title of the public office you currently occupy and to which you were elected
(c) "Appointed [full title of public office]" if you currently serve by appointment in an elective public office and
are seeking election to a different office
(d) "Incumbent" if you were elected (or, if you nro n Superior Court Judge, appointed) to your current public
office and seek election to a new term
(e) "Appointed Incumbent" if you were appointed to your current elective public office (other than Superior Court
Judge) and seek election to a new tenn
In the space provided on the next page or on an attachment sheet, describe why you believe you are eptitled to use the
proposed ballot designation. Attach any documents or exhibits that you believe support your ;proposed ballot
designation. If using the title of an elective office, attach a copy of your certificate of election or appointment. These
docurilent~:WHl'not be returned to you. Do not submit originals.-
Rev 11/12/15
If your proposed ballot designation includes the word "volunteer," indicate the title of your volunteer position and the
name of the entity for which you volunteer along with a brief description of the type of volunteer work you do and the
approximate amount of time involved. You may only use the ballot designation "community volunteer" if you
volunteer for a 50!(c)(3) charitable, educational, or religious organization, a governmental agency or an educational
... insti_tUt,ion. You may not use "community volunteer" together with another designation .
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Remember, it is your responsibility to justify your proposed ballot designation and to provide all requested
details. · For your reference, attached are Elections Code sections 13107 and 13107.3, and 2 California Code of
Regulations (CCR) section 20711. You may also wish to consult Elections Code section 13107.5 ("community
..,., · . . -_:v~lunte~r") and 2 CCR sections 20712 - 20719 (found at www.sos.ca.gov).
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NameCs)_ _,_A;._/\_,_
1~..=-.-''...,,_y_ _,_[0_._le=--/_.,i_1,_ _ _ _ _ _ _ Phone Number: _ _?_3_~_--_3_1,_/_/_~
• Use only a portion of the title of your current elected office? Yes• N9'4
• Use only the word "Incumbent" for an elective office (other than Superior Court Judge)
to which you were appointed? Yes• Ng@
• Use more than three total words for your principal professions, vocations or occupations? Yes• N~
• Suggest an evaluation of you, such as outstanding, leading, expe1t, virtuous, or eminent? Yes• N~.._•
• Refer to a status (Veteran, Activist, Founder, Scholar), rather than a profession, vocation
or occupation? Yes• Nggi_
• Abbreviate the word "retired"? Yes• NQ~
• Place the word "retired" after the words it modifies? Example: Accountant, retired Yes• Nrulf
• Use any word or prefix (except "retired") such as "former" or "ex-" to refer to a fonner
profession, vocation or occupation? Yes• No_Q
• Use the word "retired" along with a current profession, vocation, or occupation?
Example: Retired Firefighter/Teacher Yes• NQI;:)
• Use the name of a political party or political body? Yes• No©
• Refer to a racial, religious, or ethnic group? Yes• No)?
• Refer to any activity prohibited by law? Yes• NQJif
If the answer to any of these questions is "Yes," your proposed ballot designation is likely to be rejected.
Date J/16/;'if
Rev 11/12/15 2