A state appeals panel has said the California Secretary of State's office can't use state law to block a Republican state assemblyman, and the frontrunner in the race, from running in 2024 to replace retired House Speaker Kevin McCarthy.
On April 9, a three-justice panel of the California Third District Appellate Court in Sacramento sided with candidate Vince Fong in his dispute with state officials who argued he should be blocked from running for McCarthy's seat in California's 20th Congressional District, while also running simultaneously unopposed to retain his seat in the state legislature.
Fong currently represents California Assembly District 32, which runs around Bakersfield, but includes portions of Kern, Kings and Tulare counties.
According to court documents, Fong registered on Dec. 8, 2023, to run as a Republican in the March 5 primary election to retain his seat in the state Assembly.
However, two days earlier, former U.S. Speaker of the House Kevin McCarthy, also a Republican, announced he would resign and not seek reelection from the 20th Congressional District, after he was ousted from the Speaker's office in a historic move by his own party.
That surprise announcement sets up a May 21 special election to fill his seat, until a new representative can be selected in November for a full two-year term.
On Dec. 13, Fong then submitted petitions to run as a Republican candidate to replace McCarthy in the 20th District, and sought to have his name appear on the primary ballot for that office, as well.
Under California law, candidates are forbidden from withdrawing their names from the primary ballot once they have declared their candidacy for a particular office. So, Fong could not simply withdraw as a candidate for the 32nd Assembly District, and pursue election to Congress.
Instead, he would appear as a candidate in both races.
According to court documents, the California Secretary of State's office declared Fong could not run in both races.
They cited a provision in state election law which states: "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.”
California Secretary of State Shirley Weber, with the support of California Attorney General Rob Bonta, said they interpreted that law to forbid Fong from running for both state and federal office in 2024.
Fong, however, took them to court, and argued they were misinterpreting the law. Fong argued the law should be interpreted to apply only to candidates independently nominating themselves for office - not to candidates nominated by a party.
Under that interpretation, the law would only forbid candidates from independently nominating themselves for multiple offices in the same election.
Sacramento Superior Court Judge Shelleyanne W.L. Chang agreed with Fong, and ordered California election authorities to place Fong's name on the ballot for both the 32nd Assembly District and the 20th Congressional District.
With no time remaining before the primary vote, Fong's name appeared in both races.
He was unopposed in the 32nd Assembly District race. However, several write-in candidates have emerged since Fong's announcement to seek his seat, including conservative Christian businessman Ian David Smith; veterinarian Tom Willis, who owns San Jaoquin Veterinary Hospital; and Bakersfield city council member Ken Weir, who also serves as chairman of the Kern County Republican Party. All three hope to grab the seat, should Fong ultimately head to Congress.
In voting on March 5, Fong emerged the frontrunner, collecting 42% of the vote in California's multi-party direct primary, or "jungle primary" system. That means Fong will advance as the race's leader into the May 21 special election and likely the November general election.
He is opposed in that race by Tulare County Sheriff Mike Boudreaux.
According to published reports, Fong has been endorsed by both McCarthy and former President Donald Trump, the presumptive Republican nominee for President.
However, California state officials have continued their efforts to remove Fong from the 20th Congressional District ballot, if not from the ballot entirely. Weber and Bonta appealed to the Third District Appellate Court.
However, they also failed to persuade the justices of that court.
Justice Laurie Earl authored the decision in favor of Fong. Justices Peter Krause and Stacy Boulware Eurie concurred.
In the appellate ruling, the justices agreed Weber and Bonta had misinterpreted the law, and said the provision at the heart of the dispute, known as Section 8003, should be read only to apply to candidates using the independent nomination process.
"Put another way, Section 8003 'as a whole is simply a declaration that nothing [in the chapter governing direct primaries] shall be construed as prohibiting the independent nomination of candidates subsequent to or in lieu of any primary election, ... except that' no person may file nomination papers for a party nomination and an independent nomination for more than one office at the same election," Earl wrote.
"Because Fong did not file nomination papers for an independent nomination, section 8003 does not apply to him."
They also pointed to other case law, in which other judges determined earlier that the provisions of Section 8003 were included by lawmakers to specifically still allow for independent candidates to advance to the general election, but also negate the possibility that independent candidates could use the independent nomination process and California's direct primary system to run for two offices at the same time.
The justices said to rule otherwise now, in Fong's case, would essentially place them in the role of rewriting law, a task they said is reserved to the state legislature.
"If the Legislature wants to prohibit candidates from running for more than one office at the same election, it is free to do so," Earl wrote. "Unless and until it does so, however, we must take section 8003 as we find it and enforce it as written."
Fong has been represented in the action by attorneys Brian T. Hildreth, Thomas Hiltachk and Katherine C. Jenkins, of the firm of Bell, McAndrews & Hiltachk.
In a statement following the ruling Fong said: "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. I am grateful that our judicial system has upheld the integrity of our elections and sided with the Central Valley voters and our communities...
"The decision puts to end the unnecessary and ill-advised campaign in Sacramento to deprive voters of a real choice in this election. I look forward to continuing to campaign across the Central Valley before the May 21st special election and November 5th general election."