Is Vince Fong allowed to run for Congress?
Arguments were heard in a Sacramento courtroom on Thursday that could decide the fate of Assemblyman Vince Fong’s congressional bid.
With each allotted a half-hour before a panel of three justices at California’s 3rd District Court of Appeal, attorneys representing the California secretary of state and Fong laid out their barebones arguments.
Their appearance Thursday is the latest development in a months-long debate between Fong and the state of California over whether Fong should be allowed to run for Congress. The Bakersfield assemblyman, who originally declared his candidacy for reelection to his state Assembly seat last fall, reversed course weeks later and announced a bid for Congress, after former Rep. Kevin McCarthy said he would vacate the seat at the end of December.
Fong, who appeared on the March ballot for both a reelection bid to the state Assembly and for Congress, won a trial court ruling in late December that overturned a prior decision by California Secretary of State Shirley Weber who found Fong’s dual candidacy to be unlawful.
Arguments on Thursday hinged largely around the trial court’s interpretation of Elections Code Section 8003(b), which states that “no person may file nomination papers for a party nomination and an independent nomination for the same office, or for more than one office at the same election.”
Deputy Attorney General Seth Goldstein, representing California’s secretary of state, said that decades-long precedent holds that the statute has placed a “general prohibition” on any candidate running for more than one office in the same election.
He argued the trial court viewed the law “in a vacuum,” overlooking “long-standing precedent,” and ruled in a way that did not “avoid an absurd result.”
“We know that because the trial court itself, in reaching its conclusion, said that this interpretation ‘defies common
sense,’” Goldstein said. “We would argue that it is an interpretation that somewhat defies common sense and appears to depart from 110 years of precedent in interpreting the Elections Code.”
Allowing Fong to supersede this rule, Goldstein said, would trigger a “chaotic” system whereby candidates routinely run for multiple seats and “freeze out” less popular contenders.
“It would definitely lead to voter confusion if someone was on the ballot eight different times,” Goldstein said.
In contrast, Brian Hildreth, who represents Fong, cited the judge’s ruling that the statute applies only to the “independent nomination of candidates.”
The law, written in 1913, was passed at a time when California only had partisan primaries, Hildreth said, and acted as a safeguard by which independents who took a shot at elected office could only run for one at a time. Ambiguity over the subsection’s wording, he added, is what led to the trial court’s decision last December.
Fong is also not the only candidate to have his name written twice on the March 5 ballot. Four other candidates ran for multiple offices, including James Bradley, who ran for U.S. Senate and U.S. president; Lydia Gutierrez, who ran for California Assembly and Los Angeles Unified School District board of trustees; Carmenlina Minasoca, who ran for state Assembly and L.A. City Council; and Dieter Dammeier, who ran for Superior Court judge in both San Bernardino and Merced counties.
“That somehow, for some reason, is not considered a public policy problem,” Hildreth said. “It seems the state is actually OK with somebody appearing twice on the same ballot. It just depends on what offices you happened to have selected.”
Weber’s office, in her brief, wrote that the law should only apply for candidates who file nomination papers through her office — the secretary of state has no control over presidential and local candidates, such as school boards. That declaration, which is required for other offices, triggers a set of restrictions.
Hildreth said that could be fixed through a single sentence, added to the Declaration of Candidacy filing — used statewide, regardless of the seat — whereby candidates state whether they are running simultaneously for another office.
In his rebuttal, Goldstein reviewed three potential remedies to the situation, including Fong’s removal from the ballot.
“I do think there are real harms in allowing a candidate to run for multiple offices,” Goldstein said. “I do think that voter confusion is an issue. I think that it also could result in freezing out other candidates and we’ve seen that because in the Assembly district, because Mr. Fong was the incumbent and ran again, no one else ran against him and I think that’s a real harm. It allowed Mr. Fong to sort of have his cake and eat it, too.”
In the event Fong is removed from the race for Congress, second-place finisher Tulare County Sheriff Mike Boudreaux, R-Springville, would face third-place finisher Marisa Wood, D-Bakersfield, in the November general election.
Goldstein also suggested another election, or a post-election contest, brought by a “defeated candidate or elector” who can challenge Fong’s eligibility.
Hildreth argued that it would pose more harm to voters to remove Fong from the ballot for Congress.
With more than 66,000 votes — 42% of the vote — so far earned in the March 5 primary, Fong is the obvious front-runner in the race for California’s 20th Congressional District seat.
“As I stand here today, 66,121 Californians have asked Vince Fong to be their next member of Congress,” Hildreth said. “That’s almost double the number of the second-place finisher. So he is overwhelmingly those voters’ choices.”
A post election remedy, he continued, is already in the works. There are three bills — Assembly bills 1795, 2003, and 1784 — currently going through the state Legislature that could prevent this issue from arising in future elections.
No ruling came from the court Thursday. In urging the judicial panel to intervene in this case, the secretary of state has asked the state appeal court to issue its ruling before the looming April 12 deadline to certify election results from the March 5 primary.