Hours after a judge allowed Vince Fong to run for both Congress and the state Assembly on the same March 5 ballot, state Democrats vowed to take action to not let it happen again.

A Sacramento County Superior Court judge ruled that Secretary of State Shirley Weber erred when she rejected Fong’s attempt to run for the 20th Congressional District race — which includes parts of Fresno County. Weber used a state law that prohibits candidates for running in more than one race per election, Election Code 8003(b).

Fong, R-Bakersfield, previously qualified to run for his fifth term in the Assembly.

Judge Shelleyanne Chang found wiggle room in that state law, which dates back to voter reform in 1913. Because the language of the law applies to “independent” candidates, which Fong was not, it would not apply in this case.

“The Court finds that section 8003 is inapplicable to Fong and cannot be used as a reason to preclude him from the Primary ballot for CD-20,” Chang wrote.

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Legislators, Sec. of State Attack

Hours after the decision on Thursday, Assemblywoman Wendy Carrillo, D-Los Angeles, proposed legislation to prevent a similar situation from happening again.

“This is unfortunately a gross interpretation of the law. My office will be introducing policy that will clear up this mess,” Carrillo wrote on X, formerly Twitter.

Although not specific, Carrillo said her legislation would allow candidates to change offices they are running for, “but under no circumstances should candidates be able to run for two offices at the same time.”

She also blamed the situation on “GOP shenanigans.”

Early Friday morning, Weber said she would appeal the judge’s decision, although it is too late to remove Fong from the ballot. The deadline to certify candidates was Thursday, and Weber said Fong was included on both the congressional and Assembly lists.

“I strongly disagree with the outcome of this case, and I am gravely concerned about the consequences of today’s ruling,” Weber said in a news release.

“As California’s chief election official, it is my duty to take steps necessary to protect voters. As such, my office will appeal this ruling in an effort to ensure that voters in future elections will not become disenfranchised, be left without representation, or become subject to other unforeseen negative consequences that would erode confidence in our elections,” Weber said.

Weber also said she agreed with a passage in Chang’s ruling.

“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,” Chang wrote.

Assemblywoman Laura Friedman, D-Glendale, who passed up seeking a fifth term in the legislature to run for Congress in 2024, mockingly lamented her decision.

“Silly me. Only running for Congress instead of also running for Assembly. Could add in a few more offices next time, according to a Sacramento judge. The sky’s the limit!” she wrote on X.

The Election Code Argument

During Thursday’s hearing in Chang’s courtroom, she expressed reservation about the legal reasoning used by Weber. In 2011, the state moved to a top-two primary system, meaning the two candidates with the most votes in the primary advance to the November general election, regardless of party.

In the previous system, candidates were segregated by political party, with only registered voters in that party allowed to vote. The winner of each party’s primary would advance to the general election.

The “top-two” system relegated EC 8003(b) obsolete in its language. The law 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.”

Since party nominations no longer apply (except for president), neither does the law.

Compatible Offices?

Arguments at the hearing also included the concept of “incompatible offices,” which is covered under another law, Government Code 1099. Lawyers for Fong argued that is a decision the legislatures need to make, not the Secretary of State.

The law says that one person cannot hold two incompatible offices at the same time. It does bar someone from running for two such offices on the same ballot.

Incompatible offices have a three-part definition in the law — either office would have supervisory power over the other; a clash of duties or loyalties; or public policy considerations make it “improper.”

If Fong is successful in his Congressional and Assembly races — and Fong was the only qualified candidate for Assembly — a decision would have to be made if those offices are compatible. The new Assembly term begins Dec. 2, 2024; the Congressional term starts Jan. 3, 2025.

However, a special election for the remainder of the 20th Congressional District seat — Rep. Kevin McCarthy, R-Bakersfield, resigns Sunday — is likely for the spring. If Fong runs and wins, a decision would come sooner.

Joseph McCorkle, a San Francisco lawmaker who in 1851 simultaneously held both a seat in Congress and the Assembly, was mentioned during Thursday’s court hearing.

Chang’s ruling could allow for candidates to appear on the ballot for more than one office for the November election, if the legislature does not pass changes before then.

Several smaller cities will hold elections for city council and mayor that do not hold March primaries. In theory, a candidate who advances to the November election for Assembly could also run in his or her local city council race.

Candidate List Set, GOP Candidates Split

After Fong’s congressional candidacy became official, Weber released the official candidates for Congressional District 20. The district includes parts of Kern, Fresno, Tulare, and Kings counties.

• 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

On Friday, Ellis threw his support to Fong, essentially ending his own campaign.

“I know firsthand that Vince is a man of principle, faith, and conviction who is committed to working with all Americans to move our country forward. We must elect Vince Fong to succeed Congressman Kevin McCarthy. It is crucial that we maintain strong leadership for our district and keep our Republican majority in the U.S. House in 2024. I encourage all Central Valley Republicans to rally behind Vince,” Ellis said in a news release.

Giglio, who at one point threatened a lawsuit if election officials allowed Fong to run, is still upset over the court decision.

“The GOP does not care about election integrity. Ignoring election laws when they benefit their agenda is evidence that the Washington uni-party is joining forces to keep outsiders from breaking into their club and destroying the status quo,” Giglio wrote.