Vince Fong can run for Kevin McCarthy’s congressional seat in November, appeals court says

Assemblyman Vince Fong, R-Bakersfield, can run for retired Rep. Kevin McCarthy’s congressional seat in November, a state appeals court affirmed Tuesday.

The decision ostensibly ends a legal challenge from California’s secretary of state that has threatened Fong’s general election bid for Congress since he entered the race to succeed his former boss in December. He’ll appear on the November ballot for both Congress and the Assembly.

Fong, McCarthy’s chosen successor, was on the March 5 primary ballot for both California’s 20th Congressional District and 32nd Assembly District thanks to a messy scramble to pick a successor to the former Bakersfield congressman. That status was at the center of California Secretary of State Shirley Weber’s issue with Fong’s congressional candidacy; she asked the appeals court to decide whether a Sacramento Superior Court judge erred when she granted the Assemblyman’s request to be on the ballot for two offices.

But the three justices unanimously concurred with the superior court’s decision, adding that the Legislature would need to take further action to prevent a candidate like Fong from being on the ballot twice under California’s election system.

Fong, 44, gathered the most votes of candidates in the congressional race’s March 5 primary and advanced to November with Tulare County Sheriff Mike Boudreaux, a Republican, the Associated Press projected.

“Today’s ruling is yet another victory for the voters of the 20th Congressional District, who have now had their right to select the candidate of their choice upheld by the courts, twice,” Fong said in a statement Tuesday.

The election code at the center of Weber’s argument was section 8003, subdivision (b), which reads, “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.” Weber’s attorneys had argued that the second part of this code broadly applied to anyone seeking to file to run for more than one office in the same election.

The court, concurring with the lower court, said that this part of the code only applies to the independent nomination process — something that Fong was not participating in — citing that section 8003 as a whole targets independent nominations. More than a decade ago, California switched to primary elections that put all candidates for an office like Congress on ballots for voters to choose from, rather than separating them by political party. The top two vote-getters regardless of party advance to the general election; there is no independent nomination process for these races.

Presiding Justice Laurie Earl wrote in the court’s decision that this interpretation “is the only way to give effect to all parts of section 8003. And because Fong has not submitted nomination papers for a party nomination and an independent nomination for more than one office at the same election, section 8003, subdivision (b) does not apply to his candidacy.”

“Indeed, it appears the Legislature intended the provision to apply only to independent nominations,” Earl added, “because the act contained marginal notes inserted by the Legislature, and the marginal note states ‘Independent Nomination.’”

The California 3rd District Court of Appeal heard arguments in Sacramento on April 4.

Weber could ask the California Supreme Court to review the decision (The Bee reached out to her office to see if she would and has not immediately heard back). But with an April 12 deadline to certify who is running in the Nov. 5 general election, time to do so is severely limited.

Weber said in a statement that her office disagreed with the ruling, adding that both courts that have heard the case “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,” she said. “This ruling highlights the need for legislative attention. We are carefully considering all our options.”

There are two more elections this year to replace, who left Congress in December following his October ousting as Speaker of the House. One is to complete the remainder of his current term in a May 21 runoff between Fong and Boudreaux, 57.

The other, to be decided Nov. 5, is for a full, two-year term to begin January 2025. Weber’s challenge only applied to the contest for the full term.

Fong’s attorney, Brian Hildreth, told judges at the April 4 hearing that removing Fong from the equation now would disenfranchise voters, saying, “They’re 300 miles away from here, but they have overwhelmingly asked him to be their next member of Congress.”

Why was Vince Fong on the March 5 ballot for Congress and the Assembly?

McCarthy announced his retirement on Dec. 6, two days before California’s electoral filing deadline. Since McCarthy, the incumbent, was not running, the filing deadline for California’s 20th was extended until Dec. 13. Fong originally declined to run for the congressional opening before the Dec. 8 deadline to qualify for his Assembly race, which he did.

State Sen. Shannon Grove, R-Bakersfield, who will be termed out of the Legislature come 2026 and appeared to be McCarthy’s likely successor, announced a few days later she would not run in California’s 20th.

After her announcement, Fong changed his mind, announced his bid for Congress before the deadline and gathered McCarthy’s endorsement. But he was still qualified for the Assembly seat, and that deadline had passed.

Weber said in December that, under the state’s elections code, Fong could neither withdraw from the Assembly race nor be on the ballot for competing offices. She said she would bar him from running in the 20th.

Fong brought the matter to court. Sacramento Superior Court Judge Shelleyanne W. L. Chang on Dec. 28 granted Fong’s request to be on the ballot for the Assembly and Congress. Chang wrote in her decision that “it somewhat defies common sense to find the law permits a candidate to run for two offices during the same election. However, . . . the Court is compelled to interpret the law as it is written by the Legislature and finds Elections Code section 8003 is inapplicable.”

Weber, up against a deadline, included him on the certified list of candidates for both races and vowed to appeal.

At the end of January, Weber asked an appeals court to erase Chang’s ruling by April 12. If the court granted her request, she could block him from the Nov. 5 ballot. Weber’s attorney, Seth E. Goldstein from the California attorney general’s office, told appellate judges during the April hearing that there were myriad post-primary fixes: “removing Mr. Fong from the general election ballot, ordering a new election, allowing for post-election remedies.”

Even if the decision was moot in Fong’s case, he said, it would be important for the court to address dual candidacy for future reference.

And the appellate court did address it, saying that the Legislature must act first: “If the Legislature wants to prohibit candidates from running for more than one office at the same election, it is free to do so. Unless and until it does so, however, we must take section 8003 as we find it and enforce it as written.”

Earl wrote that while the court acknowledges “that anomalous results could flow from the conclusion we reach today. But whatever we think of the Secretary’s example in the abstract, that is not what happened in this case,” adding that Fong’s situation as not “extreme.”

A couple of bills targeting this issue have been introduced in the Legislature since Fong filed to run in December.

Who is running in the May and November elections?

Fong was uncontested in the 32nd Assembly District’s primary, which means he’ll be on the November ballot for that seat.

The winner of the May 21 election between Fong and Boudreaux is expected to be sworn into office immediately.

The two contenders will compete again Nov. 5 for the full two-year 20th district term, which begins in January.

California’s 20th — the state’s most heavily GOP congressional district, where 47% of registered voters are Republican and 27% are Democrats — grabs portions of Fresno, Tulare, Kings and Kern counties.

Fong served as McCarthy’s district director for almost a decade before his election to the Assembly. Born in Bakersfield, Fong started his political career as an aide to former Republican Rep. Bill Thomas, McCarthy’s predecessor.

Boudreaux has been Tulare County Sheriff for over a decade. Currently president of the California State Sheriffs’ Association, he has worked in Tulare County law enforcement since age 19.