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Court of Appeal:
Candidate May Seek Multiple Offices in Primary Election
Third District Says Fong Properly Ran on March 5 Ballot for Both State Assembly and Congress; Under Opinion, Secretary of State Weber Must Certify Him as Candidate in the Run-Off for Seat in the House of Representatives
By Kimber Cooley, Staff Writer
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—AP Assemblymember Vince Fong speaks at the Capitol in Sacramento on June 13, 2022. The Third District Court of Appeal held yesterday that his name lawfully appeared on the March 5 ballot as a candidate for reelection as well as a candidate for the U.S. House of Representatives. |
A person may be a candidate for more than one office in a primary election, the Third District Court of Appeal held yesterday, meaning that the name of Assemblymember Vince Fong, R-Bakersfield, who on March 5 was reelected to the Assembly without opposition, may appear on the Nov. 5 general election ballot as a candidate for the House of Representatives.
Elections Code §8003(b), prohibiting dual candidacies, applies only to those who seek office in the general election as independent candidates by filing nominating petitions, Presiding Justice Laurie M. Earl wrote. Justices Peter A. Krause and Stacy E. Boulware Eurie joined in the opinion.
That opinion denies a petition by Secretary of State Shirley N. Weber for a writ of mandate. Weber last year rejected Fong’s nominating papers for a congressional seat on the ground that §8003 bars him from running for that office because he had already filed for reelection to the Assembly.
Sacramento Superior Court Judge Shellyanne W.L. Chang on Dec. 28 ordered Weber to include Fong’s name on the certified list of primary candidates for the 20th U.S. Congressional District. Weber challenges Chang’s interpretation of §8300.
The seat became vacant when Kevin McCarthy, having been booted from his post as House speaker, resigned from Congress effective Dec. 31. He announced his decision to do so on Dec. 6.
Plain Language
Earl looked to the plain language of §8003(b), which provides:
“This chapter does not prohibit the independent nomination of candidates…subject to the following limitations:
“(a) A candidate whose name has been on the ballot as a candidate of a party at the direct primary and who has been defeated for that party nomination is ineligible for nomination as an independent candidate. He is also ineligible as a candidate named by a party central committee to fill a vacancy on the ballot for a general election.
“(b) 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.”
She noted that it is undisputed that Fong is not seeking to get on the general election ballot via the independent nomination process, but rather sought nomination by means of a primary election.
Weber argued that the language in subsection (b) should be read in isolation as prohibiting any person, regardless of the mechanism used for getting on the ballot, from filing nomination papers for more than one office in the same election. The jurist found this interpretation lacking and wrote:
“As interpreted by the Secretary, only the first prohibition is properly understood as a limitation on the independent nomination process, while the second prohibition is ‘much broader’ and would apply whenever any person seeks to file nomination papers for more than one office at the same election. Under this interpretation, however, the second prohibition is not a limitation on the independent nomination process, and thus effectively ignores the first clause of section 8003.”
Earl went on to say:
“Contrary to the Secretary’s argument, the first clause cannot be interpreted as introducing ‘general prohibitions applicable to all candidates’…regardless of whether they are using the independent nomination process. If section 8003 established general prohibitions applicable to all candidates, then the first clause would be meaningless….”
She continued:
“We believe this interpretation, while potentially leading to anomalous results (as noted by the superior court in its order), is the only way to give effect to all parts of section 8003. And because Fong has not submitted nomination papers for a party nomination and an independent nomination for more than one office at the same election, section 8003, subdivision (b) does not apply to his candidacy.”
Earl found that the placement of the section in a part of the code titled “Primary Election Nominations” does not trump the plain language of the statute itself.
Absurd Result
Weber argued that Fong’s interpretation of the statute would create unreasonable results. Earl said:
“The Secretary argues Fong’s interpretation of the statute would lead to absurd results because it 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….[O]ne very popular candidate could conceivably run for Governor, Lieutenant Governor, Secretary of State, Attorney General, Controller, and Treasurer at the same election, win them all, and then resign from all but the Governor’s office and appoint their friends to other statewide offices.’”
Earl acknowledged that such difficulties may result from the decision reached by the court, but said that ultimately those challenges must be addressed by the legislature and not the court. She wrote:
“If the Legislature wants to prohibit candidates from running for more than one office at the same election, it is free to do so. Unless and until it does so, however, we must take section 8003 as we find it and enforce it as written.”
The jurist said that the primary election already having taken place, there may be some “arguable merit” to a mootness claim, but wrote:
“Questions involving ballot access and whether votes for a particular candidate will be counted, go to the heart of our democracy and are of substantial and continuing interest.”
Chronology of Events
Fong, who has served as an Assemblymember from District 32 representing Kern and Tulare counties since Dec. 5, 2022, filed nomination papers for reelection to that office on the last day to do so—Dec. 8, 2023. Just two days earlier, McCarthy announced his forthcoming resignation from his seat Congress, which also covers California’s central valley.
On Dec. 12, 2023, Fong filed nomination papers for McCarthy’s congressional seat. However, on Dec. 15, Weber notified Fong that she would not accept his nomination papers for the 20th Congressional District. Fong challenged her decision by filing a writ petition in the Sacramento Superior Court.
At approximately 4:50 p.m. on Dec. 28, 2023—the final day for Weber to transmit a certified list of candidates to county election officials—Chang issued an order granting Fong’s petition. Given the timing of the order, Weber complied without seeking immediate relief and Fong’s name was included on the certified list of primary candidates for both the 20th Congressional District and the 32nd Assembly District.
Fong’s name appeared on the ballot for both offices in the March primary election and he received the most votes—41.9 percent—for the congressional seat.
Weber filed an appeal on Jan. 12, 2024 and 10 days later filed the petition for writ of mandate, seeking urgent relief and requesting a decision by the appellate court by no later than next Friday, by which time she has to certify the results of the primary election.
Absent intervention by the California Supreme Court, the prospect of which appears remote, Weber must certify Fong and Republican Mike Boudreaux, who captured 24.1 percent of the vote in the primary, as the run-off candidates. Fong and Boudreaux, sheriff of Tulare County, will also compete in a May 21 special election to fill out McCarthy’s unexpired term, Fong having received 42.3 percent of the ballots on March 19 and Boudreaux having garnered 25.8 percent.
The case is Weber v. Superior Court of Sacramento County (Vince Fong), 2024 S.O.S. 1288.
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