Appeals court upholds Vince Fong’s Congressional candidacy

California Assemblyman Vine Fong speaks at the Exeter Chamber Summit.(Kenny Goodman)

Appeals court allows Vince Fong to remain on the November ballot under two offices, clarifying that the California Elections Code does not prohibit dual candidacy

SACRAMENTO – A state appeals court settled the argument over Assemblymember Vince Fong’s candidacy in the November election, asserting that the Elections Code does not prohibit candidates from running for two offices in the same election.

In an opinion issued on April 9, the 3rd District Court of Appeals denied California Secretary of State Shirley Weber’s request to cancel the previous ruling, which allowed Fong to be on the ballot for the 20th Congressional District. This means that nothing about the current election will change, and it also clarifies the intent behind section 8003 of the Elections Code.

“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 opinion said. “Unless and until it does so, however, we must take section 8003 as we find it and enforce it as written.”

This situation started over Fong’s eligibility to run for the 20th Congressional District despite having already completed the process to run for reelection in the 32nd State Assembly District. While Webner has upheld her position that Fong is not eligible for the Congressional District 20 race under the state Elections Code since he already filed for reelection, Fong has stood firm in his position that she does not have the authority to determine eligibility.

Weber had initially said she would not include Fong on the list of certified candidates for the Congressional election, which Fong challenged in court in late December 2023. He won that case and proceeded to the primary election in March.

Court decision

Attorneys for both parties presented their oral arguments to the court on April 4, focusing on Elections Code section 8003(b), which states 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.”

The basis of Weber’s argument has been that the section should be interpreted as two separate restrictions — that candidates cannot file papers for the same office for both a party and an independent nomination, and that candidates cannot file papers for more than one office in the same election.

Fong’s argument has been the opposite, which is that the two restrictions should be interpreted together and that the section only applies to candidates seeking an independent nomination.

The court opinion, which was decided by Presiding Justice Laurie Earl and Associate Justices Stacy Boulware Eurie and Peter Krause, said that “although the Secretary’s interpretation is plausible, we conclude that Fong has the better argument.”

According to the court opinion, the weakness in Weber’s interpretation of the Elections Code section is that it focused solely on section 8003(b) without interpreting the section as a whole. By doing so, the interpretation “violates at least two rules of statutory construction,” the opinion said.

When interpreted as a whole, the court believes that the section is intended only to apply to restrictions on the independent nomination process and points to marginal notes from the State Legislature included in the section as part of its reasoning.

The opinion said that it is “undisputed” that Fong was not attempting to get onto the general election ballot via independent nomination and therefore the section does not apply to him or to the situation at hand.

Further, on the discussion of prohibiting dual candidacy on a broader scale, the court said that it could not speak to why the legislature would have adopted the prohibition only for independent candidates, but if that was an oversight, “it is the legislature’s job to correct it, not ours.”

Moving forward

Fong released a statement on April 9 celebrating the ruling, which is the second legal victory for his campaign since he announced his run to replace former Rep. Kevin McCarthy in the 20th Congressional District, which spans portions of Fresno, Kern, Kings and Tulare counties.

“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. “I am grateful that our judicial system has upheld the integrity of our elections and sided with Central Valley voters and our communities.”

Weber also released a statement on April 9 that said her office was “disappointed” with the ruling.

“The opinion runs contrary to California history and practice,” Weber said. “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. My office sought to avoid such problems through this litigation.”

As with the ruling from the trial court, the appeals court acknowledged that allowing candidates to run for multiple offices in the same election could lead to inconsistent election procedures and candidates running for as many elections as possible; however, the appeals court said “that is not what happened in this case,” and the court must focus its ruling only to the actual events of the case in question.

Weber said that the ruling highlights the need for legislative action and that her office is “carefully considering” all of its options.

The situation has already prompted members of the State Legislature — including Fong himself — to introduce bills that would resolve some of the issues at hand. For example, Assembly Bill 2003, written by Fong, would allow for candidates to withdraw their declaration of candidacy from primary elections up until the nomination deadline closes.

Another bill, AB 1795, introduced by Assemblymember Wendy Carrillo would make it so that if a candidate who had already filed for one office chose to file for a different office that had an extended nomination period, which is what happened in Fong’s case, their first candidacy filing would be automatically withdrawn.

With the election continuing as it has been, Fong’s name will remain on the ballot in November as a candidate for both State Assembly District 32 — his current seat — and Congressional District 20. He is running against Tulare County Sheriff Mike Boudreaux for the Congressional seat in both the November election and the May 21 special runoff election to serve out the remainder of McCarthy’s term.

Fong said that his win preserved “the foundation of our democratic process — voter choice,” and “puts to end the unnecessary and ill-advised campaign in Sacramento to deprive voters of a real choice in this election.”

Fong was the only candidate printed on the ballot for the State Assembly race in the March 5 primary and received more than 63,000 votes despite repeatedly saying he was only running for Congress. Four certified write-in candidates joined in on the District 32 Assembly race, with Ken Weir, a Bakersfield City Councilmember endorsed by Fong, getting enough votes to join Fong on the November ballot. 

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