Fong filed to run for reelection to the state Assembly, where he represents the Bakersfield area, then, after McCarthy announced his retirement, submitted paperwork to run for the newly vacant seat in Congress. Secretary of State Shirley Weber, a Democrat, tried to keep Fong out of the congressional primary, saying state election law barred candidates from running for two offices at the same time.
A Sacramento County judge in December ruled that Fong could run in the 20th Congressional District, which includes portions of Fresno, Kern, Kings and Tulare counties. The 3rd District Court of Appeal agreed on Tuesday, writing that Weber’s argument did not apply to Fong.
“If the legislature wants to prohibit candidates from running for more than one office at the same election, it is free to do so,” appellate court Judge Laurie Earl wrote in her opinion. Until then, she wrote, the court must enforce election law as it is written.
The decision is a victory for Fong, McCarthy’s handpicked successor, who started his political career working in the congressman’s district office in Bakersfield. McCarthy has helped to wrangle Fong an endorsement from former President Trump and funneled $500,000 from his Majority Committee political action committee to a pro-Fong group.
Fong placed first in the March 5 primary for the congressional seat.
The appellate court decision will end “the unnecessary and ill-advised campaign in Sacramento to deprive voters of a real choice in this election,” Fong said in a statement released after the ruling was announced. “I am grateful that our judicial system has upheld the integrity of our elections.”
Weber said, in a statement, that both courts recognized that the decision “leaves the door open to chaos, gamesmanship and voter disenfranchisement, and disadvantages other candidates.” She said her office is “carefully considering all our options.”
The court decision will create a strange ballot in November and an even stranger possible outcome in the San Joaquin Valley. Fong will be listed as the only candidate for the 32nd Assembly District, and one of two candidates for the 20th Congressional District in the House of Representatives.
Fong has endorsed Ken Weir, a member of the Bakersfield City Council and the chairman of the Kern County Republican Party, who is running a write-in campaign for the Assembly seat.
“We hope he wins,” said Fong spokesman Ryan Gardiner. But if Fong is elected to both offices, he would resign from the Assembly and head to D.C. Election officials would hold a special election to fill the Assembly vacancy in 2025, Gardiner said.
Fong could also already be in Congress by November. He is running in a special election next month against Tulare County Sheriff Mike Boudreaux to fill the remainder of McCarthy’s term, which ends in January 2025. A representative for Boudreaux’s campaign declined to comment.
The legal challenge over Fong’s candidacy hinged on a portion of California election law that 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.”
Fong’s campaign argued the provision has not been legally valid since 2010, when California voters approved a new state primary system. The change scrapped party nominations in favor of the so-called “jungle primary,” in which the top two vote-getters advance to the general election, regardless of party affiliation.
The state argued that the “or” in the clause split the law into two provisions: one that governed nominations, and one that barred candidates from running for more than one office.
“The ‘or’ is the key word there, and that’s why it’s two separate provisions,” Deputy Atty. Gen. Seth Goldstein said during oral arguments at the appellate court last week. The Legislature “could have made the statute more clear,” he said, but in the absence of that clarity, the court should defer to the state’s top election official.
That’s “very persuasive in terms of legislative intent,” but less persuasive when it came to parsing the actual wording of the law, said Jessica Levinson, an election law professor at Loyola Law School.
“What the judge is saying here is: I might know what the statute was intended to do, but I am bound by the language,” Levinson said.
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,” Earl wrote in her opinion.
Two members of the state Assembly have introduced bills aimed at fixing the confusion.
A bill from Assemblymember Gail Pellerin (D-Santa Cruz) would bar candidates from filing paperwork for two elections. A bill from Assemblymember Wendy Carrillo (D-Los Angeles) would allow candidates to file to run for a second seat if an incumbent declined to run, but would force them to withdraw from their other candidacy.