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ANDREW HARRIS WERBROCK , Sta te Ba rN o. 3045 09 MARGARET R. PRINZING, State Bar No . 209 4 82

 

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REMCHO, JOHANSEN & PURCELL, LLP 1901 Harrison Street, Suite 1550

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Oakland, CA 94612 Phone: (510) 346-6200

 

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Fax: (510) 346-6201 Email: aw@ rjp.com

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Attorneys for Petitioners

 

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Paul Buxman , Hope Nisly, and

Daniel

O ' Connell

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

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COUNTY OF SACRAMENTO

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(UNLIMITED JURISDICTION)

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PAUL

BUXMAN , HOPE

NISLY , AND

 

No.:

 

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DANIEL O'CONNELL,

   

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Action Filed: August 9, 2018

 

Petitioners,

 

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vs.

 

VERIFIED PETITION FOR WRIT OF MANDATE

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ALEX PAD ILLA, in his official capacity as

 

ELECTION MATTER- IMMEDIATE

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Secretary of State of the State of California ; BRANDI L. ORTH, in her official capacity as

ACTION REQUESTED [Cal. Elec. Code§ 13314]

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County Clerk/Registrar of Voters for the County of Fresno; and MICHELLE BALDWIN , in her

 

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official capacity as the Registrar of Voters for the County of Tulare,

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Respondents.

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DEVIN NUNES,

 

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Real Party in Interest.

 

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VERIFIED PETITION FOR WRIT OF MANDA TE

 

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Petitioners Paul Buxman, Hope Nisly, and Daniel O'Connell petition this Court

 

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pursuant to Elections Code section 13314 and Code of Civil Procedure sections 1085 and 1086 for a

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writ of mandate commanding respondent ALEX PAD ILLA, Secretary of State of California, to reject

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real party in interest DEVIN NUNES' proposed ballot designation "U.S. Representative/Farmer," for

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California's Twenty-Second Congressional District on the ballot for the November 6, 2018 election.

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By this verified petition, petitioners allege:

 

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PARTIES

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  • 1. Petitioner PAUL BUXMAN is a United States citizen, over the age of 18, and a

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resident of and qualified registered voter in the California's Twenty-Second Congressional District.

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The Twenty-Second Congressional District includes portions of Fresno and Tulare Counties.

 

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Petitioner BUXMAN is a farmer who owns and operates a stone fruit farm in Tulare County.

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  • 2. Petitioner HOPE NISLY is a United States citizen, over the age of 18, and a

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resident of and qualified registered voter in the California's Twenty-Second Congressional District.

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Petitioner DANIEL O'CONNELL is a United States citizen, over the age of 18,

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and a resident of and qualified registered voter in Fresno County, California.

 

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  • 4. Respondent ALEX PAD ILLA is the California Secretary of State and is sued in

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his official capacity. As the Secretary of State, respondent PADILLA has a duty to administer the

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provisions of the Elections Code in a manner that fully complies with the law, including the law

 

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requiring him not to accept ballot designations that are misleading or otherwise do not comply with the

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law. Respondent PAD ILLA is the elections official responsible for overseeing the qualification

 

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process for candidates for Representatives in Congress. See, e.g., Cal. Elec. Code§ 8100.

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  • 5. Respondent BRANDI L. ORTH is the County Clerk/Registrar of Voters for the

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County of Fresno. As the county elections official for the County of Fresno, respondent ORTH is

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responsible for preparing and providing the official ballots to the voters in the County of Fresno, and

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preparing and distributing the county voter information guide, which contains a facsimile of the

 

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official ballot, to voters in the County of Fresno. See, e.g., Cal. Elec. Code §§ 13000, 1330.

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  • 6. Respondent MICHELLE BALDWIN is the Registrar of Voters for the County

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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

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responsible for preparing and providing the official ballots to the voters in the County of Tulare, and

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preparing and distributing the county voter information guide, which contains a facsimile of the

 

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official ballot, to voters in the County of Tulare. Se e, e.g., Cal. Elec. Code§§ 13000, 1330.

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  • 7. Real party in interest DEVIN NUNES is a Member of Congress and a candidate

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for re-election to the office of United States Representative, Twenty-Second Congressional District, on

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the ballot for the November 6, 2018 election.

 

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JURISDICTION AND VENUE

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This Court has jurisdiction over this matter pursuant to Elections Code

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section 13314 and Code of Civil Procedure sections 1085 , et seq.

 

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  • 9. The proper venue for this action is the County of Sacramento pursuant to

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Elections Code section 13314.

 

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CAUSE OF ACTION (Writ of Mandate)

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  • 10. On or around February 16 , 2018 , pursuant to Elections Code section 13107 . 3 ,

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NUNES filed a Ballot Designation Worksheet proposing the ballot designation " U.S. Representative / Farmer" with the Tulare County Registrar of Voters. He did not identify any alterative ballot

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designations. A true and correct copy of NUNES' s Ballot Designation Worksheet obtained from the

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Tulare County Registrar of Voters is attached to this petition as Exhibit A and is incorporated into this

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petition by reference.

 

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  • 11. This petition challenges real party NUNES ' s use of the ballot designation "U.S.

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Representative / Farmer." On March 29, 2018, respondent PADILLA released a certified list of the

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candidates who have qualified for the June 5, 2018 ballot, along with their ballot designations pursuant

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to Election Code section 8124. That list identified NUNES along with the ballot designation "U.S. Representative / Farmer." On the June 5 , 2018 ballot, NUNES appeared on the ballot with this ballot

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designation. Pursuant to Election Code section 13107(h), the ballot designation used by a candidate

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for the primary election will also be used for the general election unless the candidate requests a

 

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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

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and on that basis allege that, as of July 31, 2018, the 98th day before the general election, NUNES had

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not requested an alternate ballot designation from the Tulare County Registrar of Voters or the

 

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Secretary of State. Thus, unless modified by this Court, the Secretary of State will certify the

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designation of "U.S. Representative/Farmer" to the county election officials in California's Twenty-

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Second Congressional District on August 30, 2018, and that designation will appear on the sample

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ballot and the official ballot that will be distributed to all registered voters in California's Twenty-

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Second Congressional District.

 

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  • 12. Elections Code section 13107 and its implementing regulations control how

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candidates may describe themselves on ballot materials. Section 13107 permits candidates to submit

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one of four designations to appear immediately under the candidate's name in the ballot pamphlet and

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official ballot: (1) an elective office the candidate holds; (2) the word "incumbent" if the candidate is

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running for the same office he holds, and was already elected to that office; (3) words designating the

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candidate's principal profession, occupation, or vocation; or (4) the words "appointed incumbent" or

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"appointed" and the title of the office which the candidate holds by virtue of appointment.

 

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  • 13. Pursuant to Elections Code section 13107 ( a )(3 ), if a candidate wishes to identify

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himself by his profession, he may do so by choosing "[n]o more than three words designating either

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the current principal professions, vocations, or occupations of the candidate, or the principal

 

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professions, vocations, or occupations of the candidate during the calendar year immediately preceding

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the filing of

nomination documents

....

" This means that real party NUNES' s ballot designation must

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describe his current profession, or his profession during 2017, or it otherwise violates section 13107.

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  • 14. Real party NUNES's inclusion of the phrase "Farmer" on his ballot designation

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is false and misleading and violates Elections Code section 13107. Petitioners are informed and

 

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believe and on that basis alleges that real party NUNES does not currently work as a farmer and he has

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not earned income from 2007 through the present from farming. These allegations are based on

 

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NUNES' s own admissions in official filings and public records, which demonstrate that he is merely a

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limited partner in two wineries, Alpha Omega Winery, LLC in Napa County, and Phase 2 Cellars, LLC

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in San Luis Obispo County.

 

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VERIFIED PETITION FOR WRIT OF MANDATE

 

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  • 15. Elections Code section 13314(a) provides that a writ shall issue upon proof that

an error or omission is about to occur in the printing of a ballot, county voter information guide, or

other official matter, or that any neglect of duty has occurred, or is about to occur, in violation of the

Elections Code or the Constitution, and that issuance of the writ will not substantially interfere with the

conduct of the election.

  • 16. Pursuant to Elections Code section 13107 ( e ), an elections official may not

accept a ballot designation that would mislead the voters or otherwise violate section 13107.

  • 17. Respondent PAD ILLA' s decision to permit real party NUNES' s ballot

designation violates Elections Code section 13107 and constitutes an error and omission under

Elections Code section 13314. Similarly, ifrespondents ORTH and BALDWIN print real party

NUNES' s ballot designation on the sample ballot or official ballot, it will constitute an error and

omission under Elections Code section 13314.

  • 18. Issuance of the writ will not substantially interfere with the conduct of the

November 6, 2018 election . Petitioners are informed and believe, and

on that basis alleges that the

Secretary of State can accept court-ordered changes to the State Voter Information Guide for the

General Election until August 30, 2018. August 30, 2018, is the deadline for the Secretary of State to

transmit to each county elections official a certified list of eligible candidates for the general election,

along with ballot designations for the candidates. Cal. Elec. Code § 8148. Because this Court can

issue this writ prior to August 30, 2018, there will be adequate time to incorporate any changes to real

party NUNES' s ballot designation in response, and this writ will not substantially interfere with the

conduct of the election.

  • 19. Code of Civil Procedure section 1086 requires that a "writ must issue in all cases

where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." Petitioners are

informed and believe that respondent PADILLA has accepted real party NUNES's ballot designation

and will not change it without a court order. Consequently, there is no plain, speedy or adequate legal

remedy in the ordinary course of the law for preventing a false and misleading ballot designation from

being presented to the voter.

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VERIFIED PETITION FOR WRIT OF MANDATE

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Petitioners' statutory rights, and the right of voters in California's Twenty-

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Second Congressional District to be accurately informed about the candidates who seek to represent

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them, and not to be misled by materials issued by the State and counties, will be irreparably injured if

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real party NUNES is permitted to use the ballot designation "U.S. Representative/Farmer" or any

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similar designation on the November 6, 2018 ballot.

 

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WHEREFORE, petitioners pray:

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I.

That this Court issue a writ

of mandate prohibiting respondents PAD ILLA,

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ORTH, and BALDWIN, and any election official acting under their direction or control, from using

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the designation "U.S. Representative/Farmer" or any similar designation, as the ballot designation for

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real party NUNES on the Certified List of Official Candidates or on any other ballot materials for the

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November 6, 2018 election.

 

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  • 2. For attorneys' fees and costs; and

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  • 3. For such other and further relief as the Court deems just and equitable.

 

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Dated: August 8, 2018

 

Respectfully submitted,

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Andrew Harris Werbrock

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Margaret R. Prinzing REMCHO, JOHANSEN & PURCELL, LLP

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By: ~--~-

KndrewHarriswer

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Attorneys for Petitioners Paul Buxman, Hope Nisly, and Daniel O'Connell

(00350155-2)

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VERIFIED PETITION FOR WRIT OF MANDA TE

 

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VERIFICATION

I, Paul Buxman, declare:

J am one of the petitioners in this action. I have read the foregoing Petition for Writ

of Mandate and know the contents thereof. I certify that the same is true of my own personal

knowledge, except as to matters stated on information and belief, and as to those matters, I believe

them to be true.

I declare under penalty of perjury that the foregoing is true and correct. Executed this

  • 8 -=r!:_ day of August, 2018 , at D; \"\ tJo ~ , California.

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£.~---~

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VERJFICA TION

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VERIFICATION

I, Hope Nisly, declare:

I am one of the petitioners in this action. I have read the foregoing Petition for Writ

of Mandate and know the contents thereof. I certify that the same is true of my own personal

knowledge, except as to matters stated on information and belief, and as to those matters, I believe

them to be true.

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I declare under penalty of perjury that the foregoing is true and correct. Executed this

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day of August, 2018, at

fu~ -Califorrria. .
fu~ -Califorrria.
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VERIFICATION

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VERIFICATION

I, Daniel O'Connell, declare:

I am one of the petitioners in this action. I have read the foregoing Petition for Writ

of Mandate and know the contents thereof. I certify that the same is true of my own personal

knowledge, except as to matters stated on information and belief, and as to those matters, I believe

them to be true.

I declare under penalty of perjury that the foregoing is true and correct. Executed this

--, tP.£:SNQ _ _, ___ day of August , 2018, at , California. 8 9 O'L
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day of August , 2018, at
, California.
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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

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Candidate Name:

Office:

(/ls~

Home Address:

Dev·, 0

G.

Nu11e5

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FEB l 6 2018

TIJLMIB coUNTY

REGfSJ!ttAR OF VOTERS

Business Address: .-~

....

L

..

:.------------------------------

Mailing Address: --'M~'/t-------------------------~---

Phone Number(s) Business:

--+-fV--'-i4f-·___ _

Home/Mobile: -~M~1/-}~'-------Fax:

____/1/,--'--f1------

,., ....

  • L Gender (optional, for translation use only):

NI}-

  • 1 Attorney Name (or other person authorized to act in your behalf):

C:

0

-~ j

Address: --'-fJ-'-J+------------------------------

Home Address:

__AJ___._A..__

______________

E-Mail:

____N_..1.___

_______

_

~ Business Address: ---'/'-'V,'--~-'---------------------------- -.----

E

!

Mailing Address:

___/1)_/4

_____________________________

_

L

Phone Number(s) Business:

_,_/0_~_____

Home/Mobile:

-~}J_J/)______

Fax: _/v/J

._

~------

Proposed Ballot Designation:

__ul_t-~_-_:

_Ri.....r-'-1

. P=-{j_e~:s_e _.1_kt...a,.h_,v,~e~+/~·~_-ti

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r~/>-'-'1,e.='-r _________

1 st Alternative:

  • ---'-'~------------------------------ NA

2nd Alternative:

NA:

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~~

:

---~------------------------------

You may select as your ballot designation:

  • (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.-

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

..,

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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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Justification for.use pf proposed ballot designation: Lllfr<:1.f: 8,<pr6v,hr11e-

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[Yv-+AGr-.

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fund 2,

IJ IJ.qJJ}p:1;;;{

If your proposed ballot designation includes the word "volunteer," indicate the title of your volunteer position

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Current or Most Recent Job Title: _IA_·S _&-c""'iµ~e,s.~·~o/P_,_'?_J,

._.

_.

  • la--- Start/End Dates:

___

Employer Name or Business:

tA ..

s:

,

to15.r1v:,S

_b~3__

a_1/i_~_b.,_•_r __

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Person(s) who can verify this info1mation:

Name(s)

N1 C iy

 

Herttleo:ol\

 

PhoneNumber:

~59 - ?!.9-<g9IJ3

 

E-Mail:

1nc:kv4~ f{)u 1 V\ lUi,,rts·. ,,ef-

NameCs) _

_,_A;

/\_,_1~

._

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,,_y_

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le=--/

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,i_1,_______

Phone Number:

E-Mail:

?_3_~_--_3_1,_/_/_~

/htt~y@ ~11,11.JJ,A{\(;},. ne·r

Before signing below, answer the following questions.

Does your proposed ballot designation:

Use only a portion of the title of your current elected office?

Yes

Use only the word "Incumbent" for an elective office (other than Superior Court Judge)

to which you were appointed?

Yes

Use more than three total words for your principal professions, vocations or occupations?

Yes

Suggest an evaluation of you, such as outstanding, leading, expe1t, virtuous, or eminent?

Yes

Refer to a status (Veteran, Activist, Founder, Scholar), rather than a profession, vocation

or occupation?

Yes

Abbreviate the word "retired"?

Yes

Place the word "retired" after the words it modifies? Example: Accountant, retired

Yes

Use any word or prefix (except "retired") such as "former" or "ex-" to refer to a fonner

profession, vocation or occupation?

Yes

Use the word "retired" along with a current profession, vocation, or occupation?

Example: Retired Firefighter/Teacher

Yes

Use the name of a political party or political body?

Yes

Refer to a racial, religious, or ethnic group?

Yes

Refer to any activity prohibited by law?

Yes

N9'4

Ng@

N~

N~ .._

Nggi_

NQ~

Nrulf

No_Q

NQI;:)

No©

No)?

NQJif

If the answer to any of these questions is "Yes," your proposed ballot designation is likely to be rejected.

Rev 11/12/15 2
Rev 11/12/15
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Date J/16/;'if