Fong’s dual candidacy dispute continues in court

California 3rd District Court of Appeal hears arguments on whether Assemblymember Vince Fong is eligible to run for Congress in November or not

Assemblyman Vince Fong, R-Kern County.
Assemblyman Vince Fong, R-Kern County.
Serena Bettis
Published April 7, 2024  • 
12:00 pm

SACRAMENTO – Assemblymember Vince Fong’s placement under two different offices on the March 5 primary ballot is still being challenged nearly four months after he declared his candidacy for Congress.

California’s 3rd District Court of Appeal heard oral arguments on April 4 from legal counsel for Fong and California Secretary of State Shirley Weber in the case of Weber versus the Superior Court of Sacramento County. Weber has requested that the appellate court issue its ruling by April 12, the date she is required to certify the primary election results.

This case is a continuation of the disagreement over Fong’s eligibility to run for the 20th Congressional District seat formerly held by Rep. Kevin McCarthy, which became an issue when Fong declared his candidacy for that office in December 2023 after having already completed the process to run for reelection to the 32nd State Assembly District. 

In response to the Sacramento Superior Court ruling from Dec. 28, 2023, which compelled Weber to include Fong on the list of certified candidates for both offices, Weber filed a petition with the appeals court for a peremptory writ of mandate — a request for the appellate court to vacate, or cancel, the superior court’s ruling and determine the legality of candidates running for multiple offices — on Jan. 22. 

If the appellate court denies this request, the election will continue as it has already. 

Fong, a Bakersfield Republican who has held office in the California State Assembly since 2016, will remain on the general election ballot as a candidate for both offices but will only be campaigning for Congress. 

After the March 5 primary, Fong emerged as the top vote-getter for both offices, despite repeating his intention to only run for Congress. He’ll move on to November with Tulare County Sheriff Mike Boudreaux as his opponent for Congress and Bakersfield City Councilmember Ken Weir — who Fong has endorsed — listed beside him for State Assembly. 

If Fong were to win both races, he has said his intention would be to resign from the State Assembly. His resignation from the Assembly could possibly come sooner than that, however, as he is also currently headed to a May 21 special runoff election against Boudreaux to serve out the final months of McCarthy’s term.

However, if the appellate court grants Weber’s request and vacates the lower court’s ruling, Weber would not include Fong — or his 66,121 votes — in her certification of the general election ballot for Congressional District 20. Instead, Boudreaux, who received 37,872 votes, and Democrat Marisa Wood, who came in third with 33,491 votes, would likely move on to November. 

The legal arguments

There are many facets to both sides’ arguments, but two of the central questions focus on whether or not the Elections Code prohibits a candidate from running for two offices in the same election and whether or not the Secretary of State’s office has the jurisdiction to determine that and enforce her view of the Elections Code. 

Much of the argument revolves around section 8003(b) of the Elections Code, which is housed under the section of the code that addresses candidate nominations in primary elections and 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 argument interprets that section as two distinctive clauses: one that prohibits candidates from filing papers for the same office for both a party and an independent nomination, and one that prohibits candidates from filing papers for more than one office in the same election. 

“This long standing understanding makes sense,” said the brief prepared by Weber’s counsel, Deputy Attorneys General Seth Goldstein and Malcolm Brudigam. “A contrary interpretation would … cause voter confusion … and require costly special elections if one person were elected to multiple seats and then resigned from the offices they did not want to serve in.” 

Fong’s attorney, Brian Hildreth, argues that the clauses are not separate and must be read and interpreted as a whole. Additionally, Hildreth argues that the section of the Elections Code is not applicable to the state’s top-two primary system, because independent nominations are not allowed for the general election. 

Further, Fong’s counsel has stated that it is not in the purview of the Secretary of State to make statutory determinations, and they instead argue Weber only has a “ministerial,” or administrative, duty to certify the candidates and election results submitted by county election officials. 

The brief filed by Hildreth in opposition to Weber’s petition for a writ of mandate said that Weber is “seeking to usurp the will of the voters” through an order of the court that would permit “her to reject thousands of validly cast ballots.” 

Goldstein and Hildreth had a chance to present their cases to a panel of three appellate judges during 30-minute oral arguments on April 4 and now await the court’s decision. Weber’s office and Fong’s campaign have both said they do not comment on pending litigation.

Serena Bettis
General Assignment Reporter