Vince Fong allowed to run for Kevin McCarthy’s seat in Congress

Update: On Jan. 8, Gov. Gavin Newsom set a March 19 primary and May 21 special election to fill the remainder of Rep. Kevin McCarthy’s term, until January 2025.
Fong advanced to the November election in the March 5 primary for a full term. On April 9, a state court of appeal rejected the Secretary of State’s petition to overturn the December ruling.

Vince Fong, former House Speaker Kevin McCarthy’s chosen successor, can run for Congress because the state law restricting candidates from running in multiple races simultaneously no longer applies, a Sacramento County Superior Court judge ruled today.

The ruling — resulting from a last-ditch lawsuit filed by Fong to remain in the race when his candidacy was rejected by state election officials — revives a haphazard succession plan for McCarthy’s seat after the longtime Bakersfield member of Congress announced his unexpected exit by the end of the year.  

Judge Shelleyanne Chang issued her ruling just minutes before the statutory deadline for Secretary of State Shirley Weber’s office to publish a certified list of candidates running in the March 5 primary.

Fong touted the ruling as a victory for his district voters.

“I am grateful that Judge Chang upheld the integrity of our elections and sided with Central Valley voters against an overreaching Sacramento politician,” he said in a statement.

The Secretary of State’s office included Fong in the certified candidate list it released tonight for both the 20th Congressional District and his Assembly district, where he is unopposed. But early Friday, Weber said in a statement that she strongly disagrees with the ruling, is “gravely concerned about the consequences” and will appeal it “in an effort to ensure that voters in future elections will not become disenfranchised, be left without representation, or become subject to other unforeseen negative consequences that would erode confidence in our elections.”

McCarthy announced his retirement on Dec. 6, two months after becoming the first House Speaker to be ousted in U.S. history. A mad dash to succeed him ensued.

Fong — a former McCarthy advisor who initially passed on the race — jumped in on Dec. 11, the day after state Sen. Shannon Grove, another McCarthy protégé, also declined to run. McCarthy quickly endorsed Fong.

But with the state’s candidate filing deadline on Dec. 8, it was too late for Fong to withdraw from his Assembly race. And on Dec. 15, Weber’s office rejected Fong’s congressional candidacy. State law prohibits one candidate from running for two offices in the same election and Fong already filed to run for state Assembly, Weber’s office ruled.

Fong’s attorneys argued that Weber’s office used an outdated 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” — that was invalidated when California switched from party nominations to a top-two primary system in 2011. They argued that Weber has no authority to “block” Fong from the ballot or decide if candidates are eligible to run for office, but is only empowered to “receive and file” nomination documents.

“This lawsuit is about upholding the integrity of our elections and defending the rights of Central Valley voters against the overreach and interference of Sacramento politicians,” Fong said in a statement.

During the hour-long court hearing today, attorneys for Fong and Weber clashed over whether state law prohibits candidates from running for multiple offices at the same time. 

Brian Hildreth, who represented Fong, argued the law does not explicitly bar someone from seeking both state Legislature and federal offices. The authority to answer that question, he argued, rests with lawmakers — not the Secretary of State or the court.

“It’s not our job to save the Legislature from itself,” he said. “They know how to write a statute if they want to. What they don’t have here is a statute that says what the Secretary of State says it says.”

But Seth Goldstein from the Attorney General’s office, representing Weber, argued that if the law barring simultaneous campaigns no longer applies after the top-two primary system was implemented, the state would have seen a proliferation of candidates running for multiple offices in one election.

“Why we don’t see that in California is because, for 110 years, this interpretation of (the state law) has been the norm,” he said.

Hypothetically, Goldstein added, a popular candidate could run for all statewide offices, win all of them, choose to remain in the governor’s seat and appoint their “friends” to constitutional offices.

Both sides also asserted that a ruling for the other side would disenfranchise voters.

In the event of ambiguity, the court has always decided “in favor of preserving the franchise, letting people run for office,” Hildreth argued.

Judge Chang, however, challenged the notion. Fong’s candidacy for Congress could still be ruled invalid if a similar legal challenge arises after the election, when Fong may have already won, Chang noted. By then, votes for Fong would essentially not count and those voters would have no chance to select an alternative candidate, she said.

“How is that not disenfranchising the voters?” Chang asked.

Goldstein added that if Fong won both races and picked either office, voters who supported him for the other would be disenfranchised.

In her ruling, Chang agreed with Hildreth that the state law does not apply to candidates in a top-two primary system. 

But she reiterated her concern that the ruling “may result in voter confusion and the disenfranchisement of voters if Fong is ultimately elected for both offices but does not retain one.”

“Moreover, it somewhat defies common sense to find the law permits a candidate to run for two offices during the same election,” she wrote. But she said she “is compelled to interpret the law as it is written by the Legislature.”

California Republican Party Chairperson Jessica Millan Patterson applauded the ruling.

“The Sacramento Democrat machine tried to and failed to interfere in a district that heavily favors Republicans, but the court rightly saw the legitimacy of Assemblyman Fong’s candidacy and put an end to Democrats’ political games,” she said in a statement.

At least one state lawmaker wants to change the law at the center of the legal battle.

Assemblymember Wendy Carrillo, a Los Angeles Democrat, deemed the ruling “a gross interpretation of the law.” She pledged to introduce policies to “clear up this mess.”

“Under no circumstances should candidates be able to run for two offices at the same time, creating opportunities to win both, refuse one and force a costly special election,” she said.

Succession scramble led to court fight 

The scramble — out of character for McCarthy, a veteran strategist and fundraiser who recruited and helped elect conservatives nationwide — signals “how crushing this defeat was for him,” said Mike Madrid, a longtime Republican political consultant and critic of former President Donald Trump.

It also suggests a lack of communication between McCarthy and his two potential successors, both of whom seemed to think the other was the heir apparent, Madrid argued.

“I think it speaks to a man who has spent his entire life looking up the ladder, not being aware of what it’s like to have to move down the ladder,” he said. “What it speaks to for sure … is how little thought out this decision to leave was and what little concern there was for what the future of a congressional seat in the district was going to look like.”

But Cathy Abernathy, longtime consultant and ally to McCarthy, said that’s reading too much into the situation. Grove — whose state Senate district overlaps almost entirely with McCarthy’s district — was the most likely candidate, and Fong only jumped in when she declined, she said.

“Everybody thinks that everybody connives and that’s how this all works,” she said. “There’s no intrigue more than we all expected Shannon Grove would run for it, when she didn’t, we now have this situation. But that’s her call.”

CalMatters politics reporter Alexei Koseff contributed to this story.