Loopholes, flukes and bad timing: How a California lawmaker could win two separate seats

California courts last week cleared Republican legislator Vince Fong to run in for his reelection in the state's 32nd Assembly District and in the 20th U.S. Congressional District. Yes, you read that right: Fong will be running in two races to hold two different offices at once.

It is as bizarre and unprecedented as it sounds. So, how did we get here? We asked an expert on California law and government to help explain.

How did this happen?

Some of this is a result of bad timing.

Former Speaker of the House Kevin McCarthy announced his exit from Congress Dec. 6, 2023, leaving his 20th Congressional seat open leading into 2024. Fong, McCarthy's chosen successor, filed to run to take his mentor's seat, but by that time he had already filed to run for reelection for his state Assembly seat.

Mary-Beth Moylan, associate dean for academic affairs and experiential learning at McGeorge School of Law, said California does not allow candidates to take themselves out of a race after declaring, which left Fong in a bind. In accordance to this law, Secretary of State Shirley Weber said Fong couldn't run for Congress instead.

"The Secretary of State said, you're already running and you can't get out of this one," Moylan said. "You can't run for two seats."

Fong appealed the decision to the Superior Court, and the judge ruled the law Weber relied on was not applicable, giving Fong the green light. Weber then appealed, sending the case to the Third Circuit Court of Appeals.

Weber argued Fong's dual candidacy of running for two offices simultaneously violated state law and had the potential to confuse and disenfranchise voters. One of her complaints included the possibility of voters casting their ballots for Fong for state Assembly, only to have him win McCarthy's old seat and head to Congress, potentially depriving voters of their choice. However, in its opinion, the Third Circuit Court of Appeals largely addressed these concerns as hypotheticals, and again cleared Fong to run for Congress.

But the problems don't end there.

Fong is the front-runner in both races. He placed first in the Super Tuesday primary for a full two-year term for the House seat and led Boudreaux in the March 19 special primary for the May 21 special election. In his Assembly district, he also won first place, as the lone candidate running uncontested.

It's within reason that Fong will win both district, head to D.C., and force a second election process to fill what will be a vacant Assembly seat.

What are the implications?

Between time and money, this quagmire will cost voters both.

"Talk about voter fatigue — we're already struggling to get voter turnout up and for people to come out [to vote], but when something like this happens, I do think it's a problem," Moylan said. The counties in question recently ranked among the lowest ends of voter turnout, and that's just in regular election seasons. The added time, complication and effort to keep track of Fong's multiple races doesn't bode well for turning out the vote.

When it comes to money, Moylan says local elections boards will have to shoulder most of the cost, which she says is "not insignificant."

"So, not exactly the most civically minded thing to do if you're Mr. Fong, looking at it that way," she said, referring to the added costs. "This is an elected representative who is causing his own constituents to potentially have an additional election."

In a statement released Tuesday following the appellate court ruling, Fong praised the decision as a win for voters.

"I am grateful that our judicial system has upheld the integrity of our elections and sided with Central Valley voters and our communities," he said. "The foundation of our democratic process—voter choice—was preserved.”

What is next?

The next step for Weber is to present the case to the California Supreme Court, if she so chooses. Just like the nation's top court, California's Supreme Court chooses which cases to hear, and accepts roughly 3% of all cases.

Though this is possible, it could lead to an even larger complication if the highest court sides with the Secretary of State.

"The Secretary of State's office very well might bring this to the California Supreme Court," Moylan said. "But even if the California Supreme Court were inclined to say that the Superior Court and the Court of Appeal both got it wrong substantively, it would likely be difficult to undo an election that already happened."

Should the decision stand and not go to California's Supreme Court, voters in many areas of Kern and Tulare counties, including the city of Bakersfield, will be faced with six separate elections this year where Fong is a candidate. Voters have already participated in three of them — two on Super Tuesday for regular terms in the 32nd Assembly and 20th U.S. Congressional districts, and one special primary March 19 to decide the top two contenders to fill the vacant House seat through the end of the year.

In that March special primary, Fong won 42% of the vote, placing him ahead of rival Republican and Tulare County Sheriff, Mike Boudreaux. The two will face off in the May 21 special election. After that race is settled, the final two races for Fong will be in November. He will once again be the only candidate running for the 32nd Assembly and again face Boudreaux in the 20th Congressional district, this time for a full 2-year term beginning in 2025.

Beyond this year's crowded election season, it's very likely the issue will lead to legislative discussions and proposals down the line. As Moylan says, the opinion from the appellate court's Tuesday ruling puts the legal quandary in the California's Legislature's hands.

Kathryn Palmer is the California 2024 Elections Fellow for USA TODAY. Reach her at kapalmer@gannett.com and follow her on X @KathrynPlmr.

This article originally appeared on Palm Springs Desert Sun: Vince Fong runs for Assembly and Congress thanks to California loophole