Calif. elections chief asks appeals court to disqualify Fong from Congressional ballot

A ruling by the appeals court could see votes for the Bakersfield lawmaker in the March 5 primary for the 20th Congressional district tossed out due to ineligibility.

California Secretary of State Shirley Weber petitioned a California appeals court to disqualify Asm. Vince Fong (R–Bakersfield) from the race to succeed Speaker Emeritus Kevin McCarthy (R–Bakersfield) by vacating a lower court ruling that paved the way for the lawmaker to run for Congress and the Assembly simultaneously on the March 5 ballot.

Weber filed the brief on Monday in the Sacramento-based Third District Court of Appeal, two weeks after she filed an initial notice of appeal.  


The backstory: In late December, Sacramento County Superior Court Judge Shelleyanne Chang ruled that Fong was eligible for the Congressional ballot, a decision that ran counter to a 111-year-old state law that has, to that point, limited candidates to run for one public office at a time. 

The big picture: Weber petitioned the appeals court for a writ of mandate through Attorney General Rob Bonta’s office. The writ petition seeks to vacate the ruling that allowed one candidate “for the first time in modern history” to simultaneously run for two offices in the same election, per the brief. 

  • With the March primary election set for March 5, Weber is requesting a ruling by April 12, the day she will certify the results of the election. 
  • If the Third District Court of Appeal granted the writ and vacated the ruling, Fong would be deemed ineligible and unable to advance to the November 2024 election, should he finish among the top two candidates in the March 5 Primary.
  • Any ruling by the appellate court is likely set off an appeal to the California State Supreme Court.
  • Despite a ruling’s impact on the March 5 primary (which fills McCarthy’s former seat from January 2025 onward), Fong is eligible to run for the March 19 special election to fill his mentor’s seat for the remainder of 2024.

Weber’s argument: The state’s appellate brief, as did the lower court ruling, focuses on section 8003(b) of California’s Elections Code, which reads, in part, “no person may file nomination papers… for more than one office at the same election.” 

  • At trial, Fong’s attorneys argued that the provision, encompassed in a larger subsection of the elections code on independent candidacies in partisan elections, was a dead-letter statute after the approval of Proposition 14 – which eliminated partisan primaries and instituted a jungle primary for state and Federal offices.
  • Chang sided with the interpretation from Fong’s legal team.
  • Weber argues that the language is plain and applies to all candidates, not just independent candidates, as Chang had ruled. 
  • She also argues that Chang’s decision overlooks an unbroken line of precedent that reads the statute as a general prohibition on dual candidacies during the same election. 

Go deeper: The state’s argument hones in on section 8003(b), which 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.” 

  • The state argues that the ruling is a list set off with a disjunctive cause, with the “or” establishing two distinct prohibitions, specifically saying that no person may file nomination papers for multiple offices. 
  • Weber also argues that no court or state official has ever interpreted the law to apply to only independent nominees, as Chang did when ruling that Fong could run because he is a Republican, not an independent. 
  • Weber also pointed to the current Senate race, which includes three sitting members of Congress in Adam Schiff, Katie Porter and Barbara Lee who are all only running for Senate. 
  • “Surely they would have chosen to not give up their current seats in Congress for the chance to run for Senate if the law had been understood differently,” the brief reads. “Moreover, Fong has not identified a single state official in modern California history that has ever ran for two offices at the same time, which further emphasizes the universal understanding of this law.”

The other side: Hours after The Sun’s initial report on the writ petition, Fong’s campaign issued a sharp retort to the filing by Weber’s office.

  • “The Secretary of State’s appeal is a last-ditch attempt by a liberal Sacramento politician to strip Central Valley voters of their right to choose the candidate of their choice in this election,” Fong’s campaign said in a statement. “This is a dangerous interference in our election process and is clearly intended to disenfranchise Central Valley voters. We are confident that the appeals court will side with voters and reject this clearly partisan ploy.”

Read the filing:

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