Assemblymember Vince Fong can remain on November’s congressional ballot in the race for Kevin McCarthy’s old Central Valley seat.

In a 3-0 decision released Tuesday morning, the Sacramento-based California Third District Court of Appeal rejected an attempt by Secretary of State Shirley Weber to keep Fong out of the race.

Fong, R-Bakersfield, is running in the 20th Congressional District. He will also be on the ballot for re-election to the state Assembly. For more than 100 years, California law has been interpreted that a candidate can only run for one position per election.

Weber challenged Fong’s dual run in December, but a Sacramento Superior Court judge ruled in Fong’s favor. Now, the appeal court has affirmed.

Related Story: Appeal Court Hears Arguments to Kick Vince Fong Off the Congressional Ballot

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

Weber could still appeal the case to the state Supreme Court.

“We disagree with and are disappointed with the Court of Appeals ruling. The opinion runs contrary to California history and practice. 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,” Weber said, in a statement that was released after this story was first published.

“My office sought to avoid such problems through this litigation. This ruling highlights the need for legislative attention. We are carefully considering all our options,” Weber said.

Opinion: Fong Has Better Argument

Weber asked for an expedient ruling. She has to certify the election by Friday.

The key question was the interpretation of Election Code 8003(b) — enacted into state law in 1913:

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.

The opinion, written by Administrative Presiding Justice Laurie Earl, said elections matter.

“Questions involving ballot access and whether votes for a particular candidate will be counted, go to the heart of our democracy and are of substantial and continuing public interest,” Earl wrote.

Associate justices Peter Krause and Stacy Boulware Eurie concurred.

At an April 4 hearing, Fong’s attorneys argued that when California went to its top-two primary system, the law should be interpreted differently. Weber’s attorneys argued that state election law was clear that Fong could not run for two different positions.

Fong also argued that the law in question applied only to independent nominees, not those who gain ballot access in the primary process. An independent nominee can gain general election ballot access by collecting sufficient signatures. Prior to the top-two system, candidates could also win a party nomination in a primary.

“Although the Secretary’s interpretation is plausible, we conclude that Fong has the better argument,” the Court wrote.

The Court wrote that Weber was ignoring EC 8003 as a whole, which part (a) states it applies to independent candidates.

Section (a) of the the law does provide, for example, that if a Republican candidate lost in the party primary for Congress, the candidate could not attempt to gain signatures to run in November as an independent.

The Court also rejected other arguments made by Weber, including the placement of 8003 in election law, and deference to Attorney General and Sec. of State interpretations.

Weber also argued that allowing a candidate running for multiple offices could provide an absurd result. The court responded.

“We acknowledge 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,” the Court said. ” We are not convinced that applying section 8003, subdivision (b) as we have interpreted it to the facts of this case would lead to absurd results.”

Court Tells Legislature to Fix. It is.

The court also wrote about a potential fix.

“If the Legislature wants to prohibit candidates from running for more than one office at the same election, it is free to do so,” the Court said.

Assemblymember Gail Pellerin, D-Santa Cruz, herself a former election clerk in Santa Cruz County, is proposing just that.

Assembly Bill 1784 would clarify ” that California law does not permit a person to file nomination documents for more than one office at the same primary election.”

The bill would require election officials to reject dual candidates. However, the bill would allow a candidate to withdraw running for the first office — something current law does not allow.

“Today’s Appellate Court ruling underscores the importance that the Legislature approve AB 1784, and make it clear that candidates cannot run for multiple offices at primary elections,” Pellerin said. “I am proud that my bill to do that has bipartisan support in the Legislature and the support of California’s elections officials.”

The Assembly elections committee will hear the bill Wednesday, at 9 a.m.

Fong Waffled on Congressional Run

Fong had a long connection to McCarthy. Prior to running for Assembly in 2016, he served as McCarthy’s district director.

Rumors swirled that McCarthy would not seek re-election, especially after he was booted from the Speaker position last October. He announced on Dec. 6 — two days before the filing deadline — not only he declined to seek re-election, but he would quit altogether at the end of the month. The decision not to run extended the deadline to Dec.13.

State Sen. Shannon Grove, R-Bakersfield, was an odd-on favorite to run for the Congressional seat, but she declined. When Grove made that announcement, Fong already filed to run for his fifth Assembly term.

With Grove out, Fong filed to run for Congress on Dec. 12, even though he was already on the ballot for Assembly. The Kern County election clerk accepted his ballot.

Weber notified Fong on Dec. 15 she overruled the local clerk’s decision. He filed court action in Sacramento on Dec. 22. Judge Shellyanne Chang heard the case on Dec. 28, and made a ruling later that day at 4:50 p.m. for Fong.

That was 10 minutes before Weber had to certify names for the election. Any delay would cause a problem printing ballots. She allowed for Fong’s name to appear, but filed an appeal Jan. 12.

Bakersfield City Councilmember Ken Weir, a Republican, qualified to run for Assembly through the write-in process. He will be on the November ballot, along with Fong.

Fong, saying he is clearly focused on the Congressional run, endorsed Weir.

Fong vs. Boudreaux Twice

Fong squares off against Tulare County Sheriff Mike Boudreaux, R-Springville, on Nov. 5, in an all-Republican showdown. The two candidates will also be on the May 21 runoff election ballot to fulfill the remainder of the term — vacated by former Speaker of the House McCarthy, who quit on Dec. 31.

“This decision puts to end the unnecessary and ill-advised campaign in Sacramento to deprive voters of a real choice in this election. I look forward to continuing to campaign across the Central Valley before the May 21st special election and November 5th general election,” Fong said.

Boudreaux’s campaign had no comment.

Read the Appeal Court Decision