California secretary of state asks court to remove Vince Fong as congressional candidate

California’s secretary of state asked a state appeals court to erase the ruling that let Assemblyman Vince Fong, R-Bakersfield, run for Congress for a two-year term to succeed retired Rep. Kevin McCarthy.

“Petitioner California Secretary of State Dr. Shirley N. Weber urgently requests a peremptory writ of mandate directing respondent Superior Court for the State of California, County of Sacramento, to vacate its ruling in Fong v. Weber,” read the petition filed Monday in California’s Third Appellate District.

The secretary of state’s office sent The Bee the petition for a writ of mandate, which is a document asking a higher court to demand a lower entity like a court or agency do or do not do something.

A spokesman for the secretary, Joe Kocurek, confirmed Wednesday that Weber would still be filing an appeal in the case. The office filed a notice of appeal two weeks ago. This week’s action would be a quicker way of getting Fong disqualified than an appeal, which can be a lengthy process.

An attorney for Fong, Brian Hildreth, said Wednesday that “This is an unprecedented attempt by the secretary of state to disqualify the ballots of potentially tens of thousands of Central Valley voters.”

Weber, in the petition filed by the California attorney general on her behalf, asked that Fong be dropped as a congressional candidate because he is already on the ballot to run for reelection to the Assembly — agreeing with an issue that the Sacramento County Superior Court judge noted when she allowed Fong to run for Congress.

Weber is asking for a decision by April 12, the day she will certify the primary election results. If the court agrees and vacates the ruling that allowed Fong to run, the Bakersfield Republican would not advance to the November election even if he finished in the top two in California’s 20th Congressional District.

Fong, 44, is considered the frontrunner to succeed McCarthy, his former boss.

“The irony is that they want to stop voter disenfranchisement,” Hildreth, his attorney, said. “I can think of nothing more disruptive to a voter than having voters, who are going to start getting their ballots shortly, at the same time seeing this legal action saying, ‘your vote for Vince Fong might not actually count.’”

Election officials will start sending out mail-in ballots for the March 5 primary, which will determine who can compete in November for the full two-year House term that begins in January 2025, by Feb. 5. Ballot drop off locations will open Feb. 6. All active registered voters in California will get a vote-by-mail ballot for the March 5 primary.

“To engage in this kind of a disruptive legal action is highly detrimental to the democratic process,” Hildreth said.

The new legal skirmish is the latest twist in a series of court rulings and government decisions regarding Fong’s status in the primary.

A Sacramento County Superior Court judge said in December that Fong, who was McCarthy’s district director for nearly a decade and received his endorsement, could run to replace his former boss in California’s 20th Congressional District.

But at the same time, Judge Shelleyanne Chang noted her concern that allowing Fong to run “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.”

Previously, California’s secretary of state had said that Fong could not run for Congress because he had already qualified to run for the Assembly before a December deadline.

Fong sued Weber, saying that her office’s job is to “receive and file” nomination documents, not to decide who is eligible to run. His lawyers argued that state law does not prevent Fong from running for both Congress and the 32nd Assembly District, which he currently represents.

Chang on Dec. 28 granted Fong’s request to run for Congress, reversing Weber’s decision. The secretary of state’s office, up against a deadline that night, included Fong on the certified list of candidates for both Congress and the Assembly.

Kern County, where Bakersfield is, has already started printing ballots for the March 5 primary with Fong running for Congress and the Assembly. It would be extremely difficult and expensive to redo printing ballots.

Fong had filed to run for re-election to the Assembly before a Dec. 8 deadline and could not withdraw his name from that race under California elections code. The filing deadline for Congress had extended to Dec. 13 because McCarthy, the incumbent, did not seek reelection. Fong, originally opting out of the congressional race, changed his mind after Dec. 8 and filed for Congress before the Dec. 13 deadline.

Candidates cannot appear on the ballot for different offices under California elections code, according to California’s secretary of state.

There is a regular primary election March 5 for the two-year House term that begins in January 2025, and a special election with a March 19 primary to fill the remainder of McCarthy’s term, which runs until then. McCarthy retired Dec. 31 after being ousted as House speaker in October.

The battle over Fong’s ballot access only concerns the two-year term contest.

If a candidate gets a majority of the votes on March 19, that person would win and be sworn in almost immediately. If not, the top two vote-getters regardless of party move on to a runoff on May 21.

Fong, who is considered the frontrunner in both races, intends to run in the special election. The deadline to file paperwork for the special election is Thursday.

The solidly-Republican 20th includes parts of Kern, Kings, Tulare and Fresno counties.

There are many candidates running in at least the March 5 primary.

Republicans include Tulare County Sheriff Mike Boudreaux, “America First” businessman David Giglio, Fresno casino owner Kyle Kirkland, California City Mayor Kelly Kulikoff and former fighter pilot Matt Stoll. Kern County tech entrepreneur Stan Ellis will be on the ballot but endorsed Fong.

Democrats are Bakersfield teacher Marisa Wood and security guard Andy Morales. No party preference candidates are meteorologist Ben Dewell and businessman T.J. Esposito.

Members of the California Legislature have introduced legislation targeting Fong’s situation, addressing issues that, in his case, are too late to deal with.

Assemblywoman Wendy Carrillo, D-Los Angeles, introduced a bill that would let a candidate who already filed for office do so for another if the filing deadline for the second race was extended, as was the case for California’s 20th. That action would automatically remove the candidate from the first race, and if the person withdrawing was the incumbent, the filing period for it would reopen for five days.

“The recent decision by the Sacramento County Superior Court highlights a glaring loophole in our electoral system, one that permits a candidate to contest multiple offices simultaneously, potentially leading to an elected position being vacated and triggering an expensive special election,” Carrillo said in a statement announcing her bill. “This is not just an administrative concern; it’s a matter of democratic principle.”

Assemblywoman Gail Pellerin, D-Santa Cruz, introduced a bill with several co-authors to prohibit a candidate from filing to run for more than one office in the same election.