ELECTION LAW & LITIGATION – Representative Matters

  • Nielsen Merksamer attorneys unanimously won a precedent-setting United States Supreme Court victory upholding citizens’ First Amendment rights to make unlimited campaign contributions supporting or opposing state and local initiatives and referenda, in Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981).
  • In the summer of 2012 Nielsen Merksamer represented the No on Proposition 29 campaign in connection with the first recount of a statewide election in California history, successfully defending the campaign’s victory.
  • Representing amici curiae in briefing and oral argument before the California Supreme Court in Vargas v. City of Salinas, 46 Cal. 4th 1 (2009), Nielsen Merksamer litigators successfully argued that the test for determining whether government officials misused public funds in connection with a ballot measure campaign should be contextual, and not be narrowly-limited only to cases in which public entities “expressly advocate” for or against a measure.
  • In a landmark case of first impression, San Francisco 49ers v. Nishioka, 75 Cal. App. 4th 637 (1999), Nielsen Merksamer lawyers persuaded the Superior Court and Court of Appeal that pre-election invalidation of an initiative petition is an appropriate remedy for purposely presenting objectively false representations to prospective petition signers.
  • Representing the NBA’s Sacramento Kings, Nielsen Merksamer successfully defended against a lawsuit seeking to overturn the rejection of a defective initiative petition that would have halted the construction of a new arena.
  • The firm served as counsel to the campaign for Proposition 14—the Top Two Candidate Open Primary Act—and since its adoption by the voters in June 2010, has successfully defended the measure against five separate lawsuits seeking to block implementation of the measure, including:
    • Rubin v. Padilla, 233 Cal. App. 4th 1128 (1st Dist. 2015), rev. denied, 2015 Cal. LEXIS 2395 (Cal., Apr. 29, 2015), cert. denied, 577 U.S. __, 136 S. Ct. 320, 193 L. Ed. 2d 229 (Oct. 13, 2015) (rejecting First Amendment and Equal Protection challenges by “minor” political parties based on alleged difficulty in reaching the general election ballot);
    • Chamness v. Bowen, 722 F.3d 1110 (9th Cir. 2013) (rejecting constitutional challenge based on rules governing write-in voting and ability to identify with non-qualified political parties);
    • Field v. Bowen, 196 Cal. App. 4th 346 (1st Dist. 2011) (same);
    • Brown v. Bowen, No. 2:12-cv-05547-PA-SP (C.D. Cal. 2012) (rejecting challenge based on Section 2 of the federal Voting Rights Act); and
    • Milonopoulos v. Bowen, No. 2:14-cv-05973-DOC-VBK (C.D. Cal. 2014) (rejecting challenge based on unsuccessful primary candidate’s inability to appear as a write-in candidate on the general election ballot).
  • In a series of recent cases, the firm has successfully represented ballot measure opponents in challenging city councils’ and city attorneys’ ballot language for proposed taxes on sugar-sweetened beverages as illegally biased, false and misleading. See, e.g., Gutierrez v. Superior Court, Case No. B243738 (Cal. Ct. App. 2d Dist., Div. 2, 2012) (City of El Monte); Johnson v. Numainville, Case No. RG14736763 (Alameda Super. Ct. 2014) (City of Berkeley).
  • In 2012, Nielsen Merksamer attorneys designed and implemented election contest charter provisions and regulations to enable the City of Vernon to challenge fraudulent elections within its jurisdiction—the first time in approximately a century that such process had been followed.
  • In Citizens to Save California v. California Fair Political Practices Commission, 145 Cal. App. 4th 736 (2006), the firm successfully challenged a California Fair Political Practices Commission regulation restricting contributions to candidate-controlled ballot measure committees, on the ground that it exceeded the Commission’s statutory powers. The firm also obtained an injunction preventing the FPPC from investigating Citizens to Save California’s compliance with the challenged regulation while the suit was pending.
  • The firm has advised a number of county registrars and city elections officials on complex election law matters, including recounts, candidate qualification disputes, etc.
  • In Brosnahan v. Eu, 31 Cal. 3d 1 (1982), we successfully defended against a pre-election challenge which sought to remove the Victims Bill of Rights initiative from the statewide ballot.
  • In Assembly v. Deukmejian, 30 Cal. 3d 638 (1982), we successfully defended the right to include referenda on the statewide ballot, in a case that established the judicial doctrine of substantial compliance with respect to statutory rules governing petition formats.