FRESNO AND TULARE COUNTIES – Assemblymember Vince Fong won the case to have his name included on the official certified list of candidates for both the House of Representatives District 20 and the State Assembly District 32 elections, allowing him to run for Congress in the March primaries.
Judge Shelleyanne Chang of the Sacramento Superior Court issued the decision on Dec. 28 after Fong filed a petition on Dec. 22 to compel California Secretary of State Shirley Weber to certify his candidacy for the 20th Congressional District. While Weber complied with the ruling, she said she plans to appeal the decision, reiterating her stance that Fong is ineligible for the race under the state Elections Code.
“As California’s chief election official, it is my duty to take steps necessary to protect voters,” Weber said in a statement Dec. 29. “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.”
The situation first unfurled after former House Speaker and longtime Valley Rep. Kevin McCarthy announced he would leave Congress at the end of 2023.
Fong, who has represented Kern and Tulare counties since 2016, initially said he would not seek McCarthy’s seat and filed for reelection to the Assembly; however, he reversed course and announced on Dec. 11 that he had qualified for the ballot as a Congressional candidate through the Kern County Registrar of Voters.
In response, Weber released a statement on Dec. 15 declaring that Fong was ineligible to run for Congress because he had previously qualified as a candidate for reelection to his current Assembly seat.
The Secretary of State’s office cited Sections 8003 and 8800 of the Elections Code — which discuss the independent nomination and withdrawal of candidates from the primary ballot — in their reasoning, stating that state law prohibits a candidate from filing nomination papers for multiple offices in the same election.
Fong’s position on Weber’s declaration has been that the Secretary of State does not have the authority to determine who is and is not eligible for the ballot; that duty falls to county officials who approved Fong’s candidacy filings, Fong’s campaign said.
“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 5 election,” Fong said in a statement Dec. 28. “I am grateful that Judge Chang upheld the integrity of our elections and sided with Central Valley voters against an overreaching Sacramento politician.”
Reasoning behind the ruling
According to the minutes order from the judicial proceedings on the matter, the court ruled that the statutes outlined in the Elections Code referenced by the Secretary of State’s office do not apply to Fong’s case.
Weber argued that Section 8003 barred Fong from running for Congress because part (b) of the statute says that “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.”
Further, Weber pointed to Section 8800 — which prohibits a candidate from withdrawing from a primary election after filing their declaration of candidacy — as reason for Fong not being able to remedy the issue of running for two offices.
In his petition to the court, Fong’s argument was that Section 8003 does not apply to his situation because he was not seeking an “independent nomination,” and because the state’s top-two primary system that became effective in 2011 abandoned the notion of the independent nomination process.
It was Weber’s opinion that the statement “or for more than one office at the same election” should be interpreted separately from the independent nomination distinction.
Chang’s opinion stated that the argument between Fong and Weber was an issue of statutory interpretation, which requires the court to consider the specific language of the statute in the context of the statute as a whole.
Because the first paragraph of Section 8003 states that the chapter does not prohibit the independent nomination of candidates other than the exceptions of part (a) and (b), which were cited by Weber, the court ruled that the language in those parts could not stand alone and therefore could not apply to Fong because he was not seeking an independent nomination.
What’s next for Assembly District 32?
Apart from the Secretary of State’s pending appeal, the current issue at hand is that Fong is now not only on the official candidate list for two offices — State Assembly and the House of Representatives — even though his campaign has said he is focused solely on running for Congress, he is the only candidate who filed for the State Assembly District 32 election.
In the Dec. 28 minute order, the court noted that it was “concerned about the outcome of this petition” because it could result in voter confusion and disenfranchisement if Fong is elected for both offices.
“Moreover, it somewhat defies common sense to find the law permits a candidate to run for two offices during the same election,” the minute order said.
Weber’s Dec. 29 response to the ruling agreed with that concern, and she said she was “gravely concerned about the consequences” of the ruling. An appeal of the Sacramento Superior Court’s decision in this case would next be heard by California’s Third Appellate District.
For the 32nd Assembly District — which is effectively left without a candidate after the filing deadline has closed — write-in candidates are eligible to run in the primary election, according to the Secretary of State’s website. Any write-in candidates that are one of the top-two vote-getters in the primary election are then eligible to run in the general election.
The Secretary of State’s website also says that in the event that no candidate was nominated for a voter-nominated office during the primary election, the independent nomination process can be used by a candidate to run in the general election.
Therefore, if Fong is the only candidate listed on the primary ballot for the 32nd Assembly District and he receives zero votes, a candidate could use the independent nomination process for the general election.