Election Law & First Amendment Litigation

Chambers USA has recognized that Wiley's Election Law & Government Ethics Practice “[f]ields a large group of expert political law practitioners whose notable litigation capabilities provide additional strength.” We successfully represent clients before federal district courts, federal appeals courts, and the Supreme Court of the United States, as well as in state courts. This representation often involves First Amendment, equal protection, and due process challenges to campaign finance and other election laws at the federal and state levels. We have vast experience representing campaigns and political parties in recounts and at other stages of the electoral process. As the trend of filing lawsuits challenging Federal Election Commission (FEC) dismissals of complaints continues to grow, we also have led the way in protecting the interests of clients who have benefited from these FEC dismissals by intervening as defendants and litigating these matters alongside, and in place of, the FEC.

Our recent federal campaign finance and election-related litigation experience includes:

• Perdue v. Kemp, No. 1:22-cv-0053-MHC (N.D. Ga. Feb. 7, 2022)
  U.S. District Court for the Northern District of Georgia
  Obtained preliminary injunctive relief in litigation challenging on First Amendment and equal protection grounds the constitutionality of a state campaign-finance scheme that effectively imposed disparate contribution limits on candidates competing for the same seat.
• Citizens for Resp. & Ethics in Washington v. Am. Action Network, 590 F. Supp. 3d 164 (D.D.C. 2022)
  S. District Court for the District of Columbia
  Obtained dismissal of first ever citizen-suit brought pursuant to the Federal Election Campaign Act, successfully arguing that an intervening D.C. Circuit decision prohibited the district court from reviewing the action.
• Moore v. Harper, No. 21-1271 (U.S.)
  U.S. Supreme Court
  Submitted an amicus brief on behalf of the largest, non-partisan voluntary membership organization of state legislators, arguing that the U.S. Constitution prohibits state courts from usurping the authority the Constitution grants state legislatures. 
• FEC v. Ted Cruz for Senate, No. 12-21
  U.S. Supreme Court
  Submitted an amicus brief on behalf of a national political party documenting the problems with a federal law prohibiting loan repayments by a candidate in excess of $250,000.
• Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021)
  U.S. Supreme Court
  Submitted two amicus briefs, on behalf of a national business association and a national nonpartisan association of state legislators, successfully arguing for more rigorous First Amendment scrutiny of a state’s donor disclosure requirements, and describing the burdens associated with compulsory disclosure.
• Chiafalo v. Washington, 140 S. Ct. 2316 (2020)
  U.S. Supreme Court
  Submitted an amicus brief on behalf of a national political party that was cited favorably in the Supreme Court’s majority opinion affirming the constitutionality of state laws penalizing a presidential elector for faithlessly voting on the Electoral College ballot. The amicus brief was also relied upon in The Wall Street Journal’s lead editorial previewing oral argument.
• Van Hollen v. FEC, 811 F.3d 486 (2016)
  U.S. Court of Appeals for the District of Columbia Circuit
  Successfully appealed a district court’s decision to strike down an FEC regulation limiting disclosure obligations for electioneering communications.
• Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (2015)
  U.S. Court of Appeals for the District of Columbia Circuit
  Secured the right of a 501(c)(4) organization, which was the beneficiary of a favorable decision by the FEC, to intervene as a defendant in a suit challenging the FEC’s decision.
• American Tradition Partnership, Inc. v. Bullock, 132 S. Ct. 2490 (2012)
  Citizens United v. FEC, 558 U.S. 310 (2010)
  U.S. Supreme Court
  Submitted briefs amicus curiae to the Supreme Court on behalf of the U.S. Chamber of Commerce, with Wiley’s arguments cited by the Court at oral argument and in its groundbreaking Citizens United v. FEC opinion.

Our state-level campaign finance and election litigation experience includes:

• Idaho Republican Party v. Bonneville County Republican Central Committee (2022)
  District Court of the State of Idaho
  Obtained a temporary restraining order and preliminary injunction enforcing state party’s bylaws in contested primary election.
• Harry Wilson v. New York Board of Elections (2022)
  New York Supreme Court, Albany County
  Represented gubernatorial candidate in a preemptive lawsuit successfully warding off a challenge filed by opponents to the candidate's ballot access.
• Amanda Chase v. Republican Party of Virginia, Inc. (2021)
  Richmond Circuit Court, Virginia
  Won dismissal of complaint challenging state party’s decision to move forward with a primary for electing statewide candidates for 2021 elections.
• DCCC v. Virginia State Board of Elections (2020)
  Richmond Circuit Court, Virginia
  Intervened on behalf of the NRCC and two congressional district party chairs to defeat efforts to remove two duly-certified Republican candidates from the November ballot.
• Center for Individual Freedom v. Tennant, 706 F.3d 270 (2013)
  U.S. Court of Appeals for the Fourth Circuit
  Center for Individual Freedom v. Carmouche, 449 F.3d 655 (2006)
  U.S. Court of Appeals for the Fifth Circuit
  Center for Individual Freedom v. Corbett, No. 07-2792 (2007)
  U.S. District Court for the Eastern District of Pennsylvania
  Obtained decisions favoring private organizations’ First Amendment rights to run advertising

Our recent, election-related commercial litigation experience includes:

• Republican National Committee (RNC) v. Occupational Safety and Health Administration (OSHA), No. 21A258 (S.Ct. Jan. 24, 2022)
  U.S. Supreme Court
  U.S. Court of Appeals for the Sixth Circuit
  U.S. Court of Appeals for the D.C. Circuit
  Successfully represented the RNC in obtaining from the Supreme Court a reinstatement of a stay of OSHA’s private employer vaccinate mandate, effectively prevailing on the merits.
• Wreyford v. Perdue, 1:21CV02054
  On behalf of Perdue for Senate, Inc., our motion to dismiss resulted in the voluntary dismissal of Wreyford’s class action Telephone Consumer Protection Act (TCPA) claim seeking hundreds of millions of dollars in damages.
• Erika Peterman v. Republican National Committee (RNC), 369 F.Supp.3d 1053 (2019)
  U.S. District Court for the District of Montana
  Obtained summary judgment ruling against plaintiff’s claim of copyright infringement when court recognized a “fair use” defense to use of a photograph on a campaign’s website in the party committee’s independent expenditure mailer.
• Karen McDougal v. American Media, Inc. (2018)
  Los Angeles Superior Court
  Co-counseled litigation through the demurrer of anti-SLAP and ultimately achieved a favorable settlement and resolution for our client in connection with a lawsuit alleging, inter alia, contractual and campaign finance violations by the publisher of The National Enquirer and various fitness magazines.
• Roger Nichols v. Club for Growth Action, 235 F. Supp. 3d 289 (2017)
  U.S. District Court for the District of Columbia
  Successfully defended super PAC in lawsuit alleging copyright and Lanham Act violations in a televised political advertisement, and obtained dismissal of Lanham Act claims and negotiated reasonable settlement of remaining copyright claim.
• Scott Lively v. Charlie Baker (2018-2019)
  Superior Court of Worcester, Massachusetts
  Co-counseled successful defense of lawsuit brought by losing primary candidate against Governor and Republican Party of Massachusetts asserting wide range of common law and statutory claims.

Contact Us

Michael E. Toner
202.719.7545 | mtoner@wiley.law