Candidate chaos: Secretary of State appeals ruling that allows Asm. Vince Fong to run for Congress

BAKERSFIELD, Calif. (KGET) — By now, you may be familiar with hearing Secretary of State, Vince Fong and lawsuit in the same sentence.

Bakersfield Assemblymember and 20th Congressional District candidate Vince Fong’s legal limbo — regarding his eligibility to run for Congress — was brought to the spotlight again Thursday afternoon.

At the state’s third district appellate court in Sacramento, attorneys for Fong and Secretary of State, Shirley Weber, each shared 30 minutes of oral arguments and answered questions from the three justices.

Fong has been in this legal battle since he first announced his run December 2023.

Each side made the case as to why the appeals court should uphold or reverse a December court ruling that was in favor of Fong. This ruling allowed Fong to be on the March 5 presidential primary ballot for two offices — his current state Assembly seat and CD-20.

As a legislature and law expert told 17 News, the justices peppered both sides with questions but seemed skeptical of Weber’s arguments.

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Here’s a refresher.

Fong initially filed to run for re-election to AD-32.

Soon after, former House Speaker Kevin McCarthy resigned from Congress, and Fong filed to run for that position.

But Weber, California’s chief elections official, disqualified Fong on the grounds that he can’t run for two offices in the same election.

Fong filed suit, and so began the legal limbo.

In the appeal, Weber’s team is asking for a reversal of the December decision, as Fong’s dual candidacy could set a confusing precedent.

The Secretary of State’s appeal write up states, “The wrong here is that Fong filed nomination papers for more than one office at the same election. The correct remedy was implemented by the Secretary when she refused to accept the subsequent nomination papers.”

Her attorneys list several “remedies,” though they note she takes no position on which would be most appropriate:

• Remove Fong from the November ballot

• Conduct a new election entirely

• The courts could “address Fong’s ineligibility to be addressed post-election via an election contest brought by an elector” (such as another candidate or voter)

There has been speculation that should Fong be disqualified, second-place GOP candidate Tulare County Sheriff Mike Boudreaux (keep in mind California’s top-two primary system) could automatically win the position.

Another speculation has been that alongside Boudreaux, third-place finisher, Democrat Marisa Wood, would be back in the race taking over second place. If so, Boudreaux and Wood would face off in the November general election.

Adding more weight to the above prediction, Weber’s attorneys noted, “The decision to advance only one candidate to a general election does not mean that the Court would be advancing a candidate that lost.”

But even to experts, it’s unclear what comes next.

There are also concerns over voter disenfranchisement.

Fong is the top vote getter in the primary, with 42% of the votes districtwide so far.

He’s also endorsed by former president Donald Trump, former House Speaker Kevin McCarthy, current House Speaker Mike Johnson and others.

“The voters have already voted,” said Chris Micheli, adjust professor at Sacramento’s McGeorge School of Law. “In other words, it’d be one thing if he didn’t go to the ballot for the voters on March 5. The fact that they have already cast their vote, I would think it’ll put the appellate court in a very difficult position…”

If the courts were to disqualify Fong, it’d be unprecedented, Micheli noted, saying, “Once this has gone to the voters, it’s really hard to un-ring the bell, so to speak.”

Fong’s team is attempting to dismiss the appeal, stating it’s “overripe and moot,” as the primary election has already passed.

There’s also debate over whether Secretary Weber has the authority to take somebody off the ballot.

“Unfortunately, I think the language of the elections code doesn’t provide our secretary of state with that clear directive of what her authority is,” Micheli said.

Dan Schnur, political science professor at UC Berkeley and USC, said Weber is doing “Too much, too late and for no apparent reason.”

Schnur added, “It’s difficult to see why the Secretary of State has decided to devote so much time and energy and taxpayer dollars to a fight that doesn’t really seem worth waging.”

He added there’s a difference ministerial duties and discretionary duties.

Eyebrows have also been raised at the timing of Weber’s appeal.

She has maintained she had no choice.

The December ruling dropped in the evening of December 28, 2023, the night Weber had to certify the list of candidates for the March 5, 2024, presidential primary election.

Thus, Weber said, appealing the decision at that time would’ve had a “severe impact on the printing and mailing of ballots and the printing of County Voter Info Guides.”

Fong has maintained confidence leading up to the appeals hearing.

During his watch party for the March 19 special election for CD-20, which Fong is also a candidate for, Fong told 17 News, “There is no limbo. We are going to be 100% successful.”

The justices have 90 days to issue a ruling, but Weber has asked for a decision by April 12… when she has to certify the results of the primary election.

Meanwhile, California assemblymembers are considering various bills that clarify state election law.

One of them is Vince Fong’s own.

It will perhaps allow candidates to withdraw their nomination if they change their mind and want to run for another seat, as Fong himself has done in the 2024 election cycle.

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