Fong is allowed to run for Congress
Vince Fong, the Bakersfield Republican scion and front-runner in both March primary races to replace and succeed former Rep. Kevin McCarthy, will be allowed to run for Congress this November, per a state appeals court ruling Tuesday.
Fong, who originally declared his candidacy for re-election to his state Assembly seat last fall, reversed course days later and announced a bid for Congress, after McCarthy said he would vacate the seat at the end of December.
The Bakersfield assemblyman has since been embroiled in a months-long legal battle with California Secretary of State Shirley Weber, who found Fong’s dual candidacy to be unlawful.
With more than 66,000 votes — 42% of the vote — earned in the March 5 primary, Fong finished as the front-runner for California’s 20th Congressional District seat. He also won practically 100% percent of the vote in the Assembly race, since his only competitors were write-in candidates. The ruling on Tuesday brings a potential close to the legal fight that served as Fong’s last hurdle leading up to the general election.
During oral arguments last week before the Third District Court of Appeal in Sacramento, Deputy Attorney General Seth Goldstein, representing California’s secretary of state, notched his argument around 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.”
Goldstein argued that decadeslong precedent backs their interpretation of the law, in that it places a “general prohibition” on any candidate trying to run for more than one office in the same election.
Allowing Fong to supersede this rule, he added, would trigger a “chaotic” system whereby candidates routinely run for multiple seats and “freeze out” less popular contenders.
“For example, a party candidate could run for every California congressional seat at the same time,” Weber wrote in her brief. “Or one very popular candidate could conceivably run for governor, lieutenant governor, secretary of state, attorney general, controller, and treasurer at the same election, win them all, and then resign from all but the governor’s office and appoint their friends to other statewide offices.”
But the three-judge panel didn’t find substantial evidence of that, at least not in this case. In her written opinion, Judge Laurie Earl dismissed the state’s fears around Fong’s dual candidacy and reiterated the lower court’s ruling that the statute applies only to the “independent nomination of candidates.”
“We acknowledge that anomalous results could flow from the conclusion we reach today,” she wrote. “But whatever we think of the Secretary’s example in the abstract, that is not what happened in this case.”
While she found some of the state’s arguments “plausible,” Earl said a ruling in Weber’s favor now would amount to “an idle act.” Results from the March 5 primary race have already been certified by county election officials. Going forward, if any changes are needed to existing law “is the Legislature’s job to correct it, not ours.”
“If the Legislature wants to prohibit candidates from running for more than one office at the same election, it is free to do so,” Earl wrote. “Unless and until it does so, however, we must take Section 8003 as we find it and enforce it as written.”
Fong applauded the ruling in a statement Tuesday, calling it “yet another victory for the voters of the 20th Congressional District.”
“I am grateful that our judicial system has upheld the integrity of our elections and sided with Central Valley voters and our communities,” he wrote. “The foundation of our democratic process — voter choice — was preserved.”
As pointed out by Brian Hildreth, an elections attorney representing Fong, 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 contests.
It is unclear whether Weber will appeal to the California Supreme Court, which can review the decision. In a statement Tuesday afternoon, Weber expressed disappointment with the ruling. She added that her office is “carefully considering all our options.”
“The opinion runs contrary to California history and practice,” she wrote. “Both the Court of Appeals and trial court recognize this ruling leaves the door open to chaos, gamesmanship and voter disenfranchisement, and disadvantages other candidates. My office sought to avoid such problems through this litigation. This ruling highlights the need for legislative attention.”