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Fong Is Allowed to Run for Congress, Judge Rules
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Published 4 months ago on
December 29, 2023

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A Sacramento Superior Court judge has ruled that Assemblymember Vince Fong will be allowed to run for Kevin McCarthy’s vacated seat in Congress.

Fong, R-Bakersfield, ran afoul of interpretations of state election laws that would prevent a candidate from running for two positions on the same ballot.

In a seven-page ruling issued by Judge Shelleyanne Chang just before 5 p.m. on Thursday, it was decided that Fong could run for both Congress and Assembly.

Chang interpreted that the rule does not apply in Fong’s situation.

“Fong’s Petition is GRANTED. The Court notes that it is concerned about the outcome of this Petition, as it may result in voter confusion and the disenfranchisement of voters if Fong is ultimately elected for both offices but does not retain one. Moreover, it somewhat defies common sense to find the law permits a candidate to run for two offices during the same election. However, as stated above, the Court is compelled to interpret the law as it is written by the Legislature and finds Elections Code section 8003 is inapplicable to Fong’s Petition and that statute is the sole basis for Respondent’s rejection of Fong’s nomination paperwork for CD-20,” Chang wrote.

Fong praised the ruling in a statement.

“Today’s ruling is a victory for the voters of the 20th Congressional District, who will now have the opportunity to select the candidate of their choice in the March 5th election,” Fong said. “I am grateful that Judge Chang upheld the integrity of our elections and sided with Central Valley voters against an overreaching Sacramento politician.”

He continued: “I look forward to getting back on the campaign trail and working as hard as I can over the next several months to once again win the trust of Central Valley voters and earn the right to represent them in Congress.”

McCarthy Endorsed Fong as His Successor

The 20th Congressional District stretches across Kern, Fresno — including parts of the cities of Fresno and Clovis — Tulare, and Kings counties.

Former House Speaker McCarthy, R-Bakersfield, not only declined to run for re-election, but he is resigning his seat on Dec. 31. Gov. Gavin Newsom must declare by Jan. 14 a special election to fill the remainder of the term (through Jan. 3, 2025).

McCarthy already endorsed Fong as his successor. Before winning election to the Assembly, Fong served as McCarthy’s district director.

Fong initially said he would stick with running for his fifth Assembly term after McCarthy announced he would not run again. He changed his mind after state Sen. Shannon Grove, R-Bakersfield, — thought to be a potential frontrunner — announced she would not run.

The Kern County election initially accepted Fong’s nomination for Congress, even though he already qualified to run for Assembly. However, Secretary of State Shirley Weber announced that Fong was not eligible to run for Congress on Dec. 15. Fong filed a lawsuit on Dec. 22.

The district has a 19-point Republican registration advantage over Democrats (46% to 27%). A majority of the voters (51%) are in Kern County.

Arguments Made in Court

Attorneys for Fong and Weber appeared in front of Chang on Thursday afternoon for about an hour.

At the heart was whether the state law prohibiting a candidate from running for two offices in the same election — Election Code 8003(b) — applies to Fong.

Judge Chang questioned the language of the law, whether it applied only to independent candidates — i.e. candidates not belonging to a particular political party.

“Reading the plain language of Elections Code section 8003, I agree with the petitioners. I think based upon the language, even before you get to the subsections A and B, I think on its face applies only to independent nominations. That’s obviously not what we have here. So I question the applicability of 8003 as providing the legal authority for the Secretary of State’s decision,” Chang said.

Fong attorney Brian Hildreth made the argument yes, citing Joseph McCorkle, a San Francisco legislator who held both seats in the state Assembly and Congress in 1851. Hildreth argued that the executive branch does not hold the power to determine whether the two offices are incompatible — a principle that states the offices would be in conflict. That is for the legislative branch.

“We’re not allowed to pass judgment on behalf of the Legislature to determine if its members can sit in another elected body or not. The Secretary of State should observe as much.”

Seth Goldstein, representing the Secretary of State’s office,  said at its most absurd, that means a popular candidate could win governor, lieutenant governor, attorney general, and more; resign the other positions; and as governor appoint his or her replacements.

He also argued that incompatible offices were different than 8003(b), which is what Weber used to bar Fong.

Chang appeared to side with Fong on that issue. She said it applies, even if the way of electing candidates is using a “top-two system” — the top two vote earners in the primary advance to the general election, regardless of political party.

“If the court accepts that interpretation that 8003(b) is now a dead letter, that means the people impliedly repealed 8003 be silent. And that’s just not an interpretation that courts take lightly when there’s nothing in the legislative history, nothing in the voter information guide indicating that they had repealed 8003(b),” Goldstein said.

Chang expressed concern that if she lets Fong remain on the ballot for Congress, he could be removed by a higher court after the election. Hildreth said Fong’s eligibility would be at the hands of the legislative body, not the court, at that point.

At the start of the hearing, Chang rejected a Fong argument made in court papers — that Weber did not have the authority to make such a decision. In court papers, Fong challenged that authority. Chang said that yes, the Secretary of State is the state’s chief election officer with the power to certify candidates on the ballot.

List of Candidates

A semifinal list provided by Weber qualified the following candidates. The official list is due Thursday. The top-two vote earners on March 5 will qualify for the November general election, regardless of party.

  • Assemblyman Vince Fong, R-Bakersfield
  • Tulare County Sheriff Mike Boudreaux, R-Springville
  • Club One Casino owner Kyle Kirkland, R-Fresno
  • Veteran Navy combat pilot and current businessman Matt Stoll, R-Visalia
  • Businessman David Giglio, R-Madera
  • California City Mayor Kelly Kulikoff, R-California City
  • Businessman Stan Ellis, R-Bakersfield
  • Educator and 2022 candidate Marisa Wood, D-Bakersfield
  • Security guard Andy Morales, D-Fresno
  • Businessman T.J. Esposito, no party preference-Bakersfield
  • Eastern Kern APCD variance board member Ben Dewell, no party preference-Tehachapi

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