Appeals Court Rules In Favor Of Allowing Assm. Vince Fong To Appear In Two Elections This November

A decision by the California 3rd District Court of Appeal made earlier this week found that Assemblyman Vince Fong (R-Bakersfield) will be allowed to run in both a Congressional and Assembly race this November, despite opposition from Secretary of State Shirley Weber.

Since December, the question of if Fong can appear in both elections in the November 2024 ballot or if he can only run for the Assembly has been a major question. Before December, Fong  jumped back and forth between running for McCarthy’s seat or sticking to running for reelection to the Assembly, due to both McCarthy being unsure of resigning and Senator Shannon Grove (R-Bakersfield) not being clear about running herself. On December 6th, McCarthy announced that he would retire at the end of the year, prompting the safe GOP district to suddenly be open. Numerous candidates quickly jumped into the race, and following Senator Grove declining the run the next day, the field only opened up wider because of many assuming that Grove was McCarthy’s “heir apparent”.

Fong originally announced that he wouldn’t be running, instead saying that he would stick to the Assembly. But with a race still devoid of any major candidates with prior elected experience, Fong changed course on December 11th, announcing that he would run after all. Secretary of State Weber quickly halted Fong’s ambitions a week later noting that Fong would be breaking state law by running for two races at the same time, and barring him from running for Congress. At the same time, he was allowed to run for the 20th House District special election to fill out McCarthy’s term, as the election would occur in late March and a runoff in May.

Weber Appeals

The Sacramento Superior Court ruled weeks later that Fong would be eligible for both races in November. SOS Weber appealed. Both the state and Fong made it clear that they wanted a ruling before April 12th, as that was the day that final election totals would be due. In the ensuing months, the case languished in the 3rd District Court of Appeal. Fong managed to secure one of the run-off election spots in late March following the special election, but his team was still committed to the longer term April appeals case.

This led to the court’s decision earlier this week where the three judges found in favor of Fong, allowing him to run in both elections this November.

“We acknowledge that anomalous results could flow from the conclusion we reach today,” said Judge Laurie Earl in her ruling. “But whatever we think of the Secretary’s example in the abstract, that is not what happened in this case. If the legislature wants to prohibit candidates from running for more than one office at the same election, it is free to do so. Until then, the court must enforce election law as it is written.”

“Weber’s office also said that the Fong campaign’s interpretation of the law would allow candidates to run for an unlimited number of offices during the same election, review the results, and pick the office they want most of those won, and resign from the rest.”

SOS officials attempted to challenge the law in court in the past weeks, claiming that a clause created following the state switch-over to the jungle primary system in 2010 required the law be split up between governing nominations and barring candidates from running for more than one office. The focal point of the argument was around a single word where it split them up: “or.”

“The ‘or’ is the key word there, and that’s why it’s two separate provisions,” said Deputy Attorney General Seth Goldstein last week. “The Legislature could have made the statute more clear, but in the absence of that clarity, the court should defer to the state’s top election official.”

When the Appeals court didn’t see the state’s way this week, Weber denounced the ruling, saying, “The decision leaves the door open to chaos, gamesmanship and voter disenfranchisement, and disadvantages other candidates. My office is carefully considering all our options.”

Meanwhile, Fong praised the ruling in a statement:

“Today’s ruling is yet another victory for the voters of the 20th Congressional District, who have had their right to select the candidate of their choice upheld by the courts, twice. This decision puts to end the unnecessary and ill-advised campaign in Sacramento to deprive voters of a real choice in this election.”

Central Valley voters won in court today. pic.twitter.com/6Nl41gv7NK

— Vince Fong (@vfong) April 9, 2024

While it is currently unknown if Weber will take the matter to a higher court, as she did not rule the idea out this week, experts told the Globe on Friday that any further appeals would likely be more difficult for the state.

“The Appeals court in California was pretty clear in their ruling,” Mark Georgiou, a legal advisor to political campaigns in several western states, told the Globe on Friday. “Fong can run in both elections now. Weber does have a point that multiple candidates running for different elections can be chaotic, but the state failed to account for this, as well as account for candidates wanting to make last minute switches. You can be they are going to be on this now.”

“Fact is, Fong won. He probably declared a bit early and switched only because the higher office became available to run in, but you can’t always count on late drop outs of elections either. Weber lost. She failed. She needs to accept this and work with legislators to fix this, not tie it all up in more appeals.”

As of Friday, the SOS office has yet to appeal the ruling. Fong’s next race is to be the Congressional special election next month.