Explaining the Latest Kevin McCarthy Circus Shitshow Saga
Answering a Question From a Subscriber About an Impending Election Challenge
Former Speaker Kevin McCarthy (R-California) recently surprised observers by announcing that he would not seek re-election but also resign from Congress at the end of the year. But in true Kevin McCarthy fashion, his plan for the succession to his Congressional seat has created a major mess, becoming its own circus shitshow.1
That’s because Kevin McCarthy endorsed California State Assemblyman Vince Fong (R-Bakersfield), who currently represents the 32nd State Assembly District, as his handpicked successor only to discover that California law prohibits Fong’s candidacy.
The California Secretary of State is now saying that it will not allow Fong onto the Congressional ballot. Fong is filing a lawsuit to be placed on the ballot.2
One subscriber to Off-Script posed the following question:
If the Secretary of State and the courts allow Assemblyman Vince Fong to remove his name from the ballot in the Assembly race after the close of filing, will that be a precedent, opening the possibility of post-deadline candidate swaps in all future state races?
It’s an excellent question. It is highly unlikely that a court will allow Fong to run for Kevin McCarthy’s Congressional seat. However, if a court does allow him to run and the decision is upheld on appeal, the answer as to whether this creates a new precedent will depend on the reasoning of the courts.3
If a court interprets the current language of the California Elections Code as allowing Fong to get onto the Congressional ballot or holds that there is a constitutional requirement allowing Fong to run, it will create a new precedent. However, if a court uses its inherent equity power to place Fong on the Congressional ballot, it would not create a precedent, and instead would be a one time deal.
This impending legal fight over whether Vince Fong can run to replace Kevin McCarthy in Congress should be explained.
I. How did we get here?
To try to break down the mess, it’s important to understand the timeline.
Kevin McCarthy announced his retirement from Congress on December 6, 2023.4
The normal deadline to file nomination papers for Kevin McCarthy’s Congressional seat, as well as other major elected offices (United States Senate, Congress, State Assembly, State Senate), was 5 pm on December 8, 2023.5
As a result of Kevin McCarthy not filing for re-election in the 20th Congressional District, the deadline to file nomination papers the 20th Congressional District was extended to 5 pm on December 13, 2023.6
Vince Fong who represents the 32nd Assembly District initially announced he would not run for McCarthy’s Congressional seat. He is eligible for re-election to the State Assembly and had filed his nomination papers to run for re-election.
On Sunday, December 10, 2023, State Senator Shannon Grove (R-Bakersfield), widely expected to run for Kevin McCarthy’s seat, announced that she would not run for Congress.7
Fong then changed his mind and decided to run for Kevin McCarthy’s Congressional seat after all.8
Kevin McCarthy then endorsed Fong to replace him in Congress.9
Kern County, California listed Vince Fong as a Congressional candidate.10
On December 15, 2023, the California Secretary of State stated that Vince Fong is ineligible to run for Congress.11
In response, Vince Fong stated he will file a lawsuit to get onto the ballot.
II. The Nomination Process for Elected Office in California
A candidate for the United States Senate, United States House of Representatives, statewide elected office, State Senate, or State Assembly must submit the required nomination paperwork to be a candidate no later than 5 pm, eighty eight (88) days before the primary election.12 For the March 2024 Primary, that deadline was December 8, 2023.
There is an exception. If an incumbent who is eligible for re-election, decides to not run for re-election, the filing deadline is extended to no later than 5 pm, 83 days before an election (for anyone other than the incumbent).13 For the March 2024 Primary, the extended deadline was December 13, 2023.
This exception, enacted in 2003, was created in response to the attempt of former Congressman Esteban Torres (D-Los Angeles) to install his son-in-law and Chief of Staff as his handpicked successor in 1998.14 He waited until right before the filing deadline to announce he was not running for re-election, in the hopes that only his son-in-law and Chief of Staff would qualify for the ballot.
Grace Flores-Napolitano (D-Norwalk), then a State Assemblywoman, ran for Congress anyway, qualified for the ballot just in time, and won. She still serves in Congress and is retiring next year.
The deadline extension, however, only applies to the individual office in question. It does not extend the filing deadline in other elections. Thus, Kevin McCarthy’s decision to not run for re-election to Congress does not extend the filing deadline in overlapping State Senate and State Senate districts.
That is significant because of the legal effect of filing nomination paperwork.
California law has long provided that a candidate in a primary election cannot remove themselves from the ballot.15 Traditionally, the only way that a candidate could be removed from a primary ballot is if they died and died no more than sixty eight (68) days before the election.16 Otherwise, they would appear on the ballot.17
But the rule is now even more restrictive for elected offices where elections are conducted under the top two primary system.
Under the top two primary system, every candidate runs in one open primary with the top two candidates advancing to the general election, regardless of the candidate’s political party and percentage of the vote received in the primary.18 In November, voters choose between those two candidates.
Offices where candidates are elected under the top two system include the State Assembly,19 which Fong has already qualified for in the 32nd Assembly District, and Congress,20 where Fong currently seeks election to the 20th Congressional District.
Under the top two primary system, there is no way to remove a candidate from the ballot once qualified, with duly-qualified candidates appearing on the ballot even if they die on or before Election Day.21 In fact, even if a candidate in the top two primary election dies, if that candidate is one of the top vote-getters in the primary, that candidate’s name will still appear on the general election ballot.22
The only exception that allows for the re-opening of the filing period under the top two primary system is if a duly-qualified candidate dies no earlier than 83 days before the election and no later than 74 days before Election Day.23
Thus, there is currently no legal mechanism available under the Elections Code to remove Vince Fong from the State Assembly ballot.
Why can’t Vince Fong simply run for both the Assembly and Congress at the same time?
First, the Elections Code provides that “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.”24
Second, the process for getting on the ballot prohibits it. One cannot get on the ballot unless they submit a declaration of candidacy.25 When one submits a declaration of candidacy, one must declare, “If nominated, I will accept the nomination and not withdraw.”26 The California Supreme Court has held that this statutory provision precludes being a candidate for more than one elective office at the same time.27
As explained by the Court, “Candidates in California also must declare that they meet all qualifications for the office and that, if nominated, they will accept the nomination and not withdraw. Thus, although our courts have not ruled upon the issue, we believe the logic of the cases from other states would apply to prevent candidates from simultaneously running for incompatible offices in California.”28
The California Supreme Court has held that one could be a candidate for a non-partisan water district and a candidate for the Democratic County Central Committee simutaneously.29 However, the Court reached that result because the Court concluded that serving on a political party county central committee was not the equivalent of serving in a public office.30
Although somewhat enticing given the historic levels of pure dysfunction in Congress, United States Representative and State Assembly are clearly incompatible public offices that one cannot hold simultaneously.
III. Potential Legal Arguments for Vince Fong to be a Congressional Candidate
There are numerous different arguments being posited for why Fong should be allowed to appear on the ballot. But there are two main arguments that Fong could make in this situation.
The Elections Code actually re-opens the filing period for him, over-riding the other legal provisions that would prohibit him from doing so.
The Equal Protection Clause of the United States Constitution requires his placement on the Congressional ballot.
If either is accepted by the court, it would create a new precedent. Under a completely different fact pattern, Fong could also argue that the Court has inherent equity powers to order his placement on the Congressional ballot and removal from the Assembly ballot. This would not create a new precedent.
A. Statutory Arguments
The main argument that Fong is likely to make is that the Elections Code does allow him to enter the Congressional race and enables the Secretary of State to remove him from the Assembly ballot.
The provision allowing an extended filing period for candidates provides that:
Notwithstanding Section 8020 or any other provision of the law, if nomination documents for an incumbent state Senator, Member of the Assembly, state constitutional officer, Insurance Commissioner, Member of the United States House of Representatives, or United States Senator are not delivered by 5 p.m. on the 88th day before the direct primary election, any person other than the person who was the incumbent on the 88th day shall have until 5 p.m. on the 83rd day before the election to file nomination documents for the elective office.31
The term “notwithstanding any other law” is a legislative “term of art” that overrides all contrary law.32 “Those six words have special interpretative importance. This statutory phrase has been called a ‘“term of art”’ . . . that declares the legislative intent to override all contrary law.”33 The term is “broad and unambiguous”, allowing an over-ride of any contrary law.34
Thus, Fong will probably argue that despite other legal provisions prohibiting him from running for Congress, he would be allowed to run, as “any person other than the person who was the incumbent on the 88th day” is allowed to file nomination papers. Because of the term, “notwithstanding”, this provision overrides other contrary legal provisions that prohibit Fong from running for Congress.
Fong was not the incumbent in the 20th Congressional District. The incumbent did not file paperwork for re-election extending the time period for filing. Therefore, this provision, overriding other laws to the contrary, allows him, as “any person” to run for the 20th Congressional District.
If a court agreed with this argument, this would have major implications for future races. It would create an exception to the rule that one could not withdraw their candidacy for office once they had filed.
Here’s why this argument likely fails. This provision of the Elections Code has to be read in conjunction with other law.35 The Elections Code establishes a framework for how candidates may run for offices in California. Fong’s interpretation would dramatically disrupt that framework.
If the term “any person” is that broad, allowing Fong to be a Congressional candidate even though he had already filed to run for the Assembly, it would theoretically over-ride other existing requirements for elective office too.
For example:
One cannot be a candidate for state or local office in California if one has been convicted of any felony involving bribery, public embezzlement, or extortion.36
One cannot be a candidate for state or local office in California if one is not registered to vote in the jurisdiction that they seek to run in.37
One cannot be a candidate in California if one refuses to take the basic oath of office when one files.38
One cannot be a candidate for state office in California if one has already served the maximum amount of time that is allowed under the applicable term limits law.39
One cannot be a candidate for the United States House of Representatives if one (1) will not be twenty five (25) years old at the time they would take office, (2) has not been a United States citizen for seven (7) years, and (3) is not a resident of the state where they are running for Congress.40
One cannot be a candidate for the United States Senate if one (1) will not be thirty (30) years old at the time they will take office, (2) has not been a United States citizen for nine (9) years, and (3) is not a resident of the state where they are running for Senate.41
One cannot cannot run for elective office if currently serving a prison sentence.42
One cannot run for the elective office of Attorney General if one has not been admitted to practice law in the State of California for the preceding five (5) years before the date of the election.43
Under Fong’s argument, these requirements would cease to apply in cases where an otherwise eligible incumbent chooses not to run for re-election.
Someone who is not registered to vote or not even a United States citizen could run for the office as well.44 If a Senator or Congressmember chose not to run for re-election, a 20 year old candidate could file to appear on the ballot. If an Attorney General eligible for re-election declined to run for re-election, someone who was not licensed to practice law in California could run for Attorney General.
The definition of a “person”, which the Elections Code does not define, should also be considered. One assumes that a “person” is an individual human being. That’s not always the case though for purposes of legal definitions.
Under the Political Reform Act of 1974, for example, a “person” is defined as “an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, limited liability company, association, committee, and any other organization or group of persons acting in concert.”45
If that definition was applied, could a committee or corporation run for elected office? Under an interpretation that favors Fong, that is a potential outcome when an eligible incumbent chooses not to run for re-election.
These outcomes could not possibly have been the legislative intent of the law, which was to ensure there would be additional time for candidates to file to run if no incumbent chose to run. Interpreting the statute in this manner could potentially allow for those results, which is something courts generally will not do.46
B. Federal Constitutional Arguments
The Fourteenth Amendment of the United States Constitution provides “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”47 The Equal Protection Clause protects the right of individuals to be candidates for public office.48 The constitutional right to candidacy is protected as part of the constitutional right to vote.49
Here, Fong’s argument is fairly straightforward. In the extended nomination period for the 20th Congressional District, all other potential eligible candidates for Congress, aside from Kevin McCarthy and those who otherwise would not qualify to serve as members of Congress, are allowed to run for the seat. Meanwhile, he is not. Thus, this law denies him equal protection of the laws.
Fong would further argue that there is no purpose for this restriction against him since there is still time for printing new ballots that will omit his name from the Assembly race and place his name on the Congressional ballot, without administrative inconvenience or added cost to elections officials.
This argument though likely fails. The United States Supreme Court has held that if ballot access restrictions impose a severe burden on candidacies for office, they must be narrowly drawn and advance a compelling state interest.50 However, smaller burdens on running for office are given far more deference by the courts.51
The courts generally give wide latitude to states to set up the rules for nomination for elected offices.52 As the United States Supreme Court has held, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the . . . Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.”53
Here, Fong is not being discriminated against as a member of a class. He is being denied placement on the ballot because he already filed for the Assembly. He could have run for Congress if he so chose. Anyone else who has filed for another elective office in the March 2024 Primary is not allowed to switch and refile in the 20th Congressional District. Or file in the 32nd Assembly District.
The restriction here is in furtherance of the state’s interest in preventing horse trading and other chicanery that would potentially manipulate the election process. For example, there are often candidates in races who are viewed as non-contenders but serious enough to take votes from other candidates who can win. The ability to persuade those candidates to get off the ballot can create opportunities for corruption.
If candidates can take their name off the ballot after they have filed to run, there are all sorts of deals that can be made that ultimately deprive the public of its choices and create the potential for malfeasance. California has an interest in setting its races and not allowing the electoral system to be gamed.
Even though it works a harsh result against Fong in this instance, the restriction against Fong seems quite reasonable. He, like everyone else, had the opportunity to file for Congress. He chose not to. The state has an interest in preventing horse trading and chicanery in manipulating the election process with candidates on the ballot.
Many other similar bans on candidacy have been upheld by the courts against equal protection challenges as well as First Amendment challenges.
The California Supreme Court upheld the lifetime ban on state legislators running for office under the term limits law.54 The United States Supreme Court upheld Hawaii’s complete ban on write-in candidacies.55 The United States Supreme Court also upheld a state requirement that banned minor party candidates from the general election ballot if they failed to receive a certain percentage of the primary vote.56
It seems highly unlikely that this ban on Fong running for Congress would violate equal protection either.
C. Inherent Equity Power of the Courts
There is another argument that Vince Fong could raise though it would be highly unlikely to succeed and would require different facts. A court could theoretically invoke its inherent equity powers under the circumstances to remove Vince Fong from the Assembly ballot and place him on the Congressional ballot.57
I imagine the following situation in which a court might conceivably order this remedy.
Kevin McCarthy doesn’t like Vince Fong and doesn’t want Vince Fong succeeding him in Congress. He knows Vince Fong will run for his seat if he announces his retirement. Fong indicates that he wants to run for Congress but will run for re-election as long as McCarthy seeks re-election.
McCarthy pulls nomination papers and begins circulating signatures. He personally tells Fong that he is running for re-election. Meanwhile, he tells another potential rival candidate to Fong that he will actually be retiring and that he’s his handpicked successor. That handpicked successor pulls papers to run and collects the signatures but waits to file until the very last day.
Vince Fong, unaware of the subterfuge, files to run for the Assembly. The deadline to file arrives and Kevin McCarthy doesn’t turn in his signatures. He then announces his endorsement of his rival candidate.
A court might intervene in that instance. The court would not change the law but would say that due to the attempts to trick Fong by taking advantage of the law, he cannot be allowed to run. The court would fashion a theory that it was actually adhering to the current law, which was designed to prevent incumbents from waiting until the last minute to not file and help benefit their favored successor.58
Even in that scenario, it’s still very unlikely that a court would intervene to place Fong on the ballot. But it’s a theoretical possibility. It is also likely that a scheme like that would not only involve McCarthy but also have to directly involve a rival candidate running for the 20th Congressional District.
Here though, we don’t have anything nearly resembling that kind of situation. Kevin McCarthy endorsed Vince Fong as his handpicked successor. Unless he’s playing some sort of complex game (which is honestly far too complicated for the man), he wasn’t trying to fool or trick Vince Fong into not running. They both simply messed up the filing and Vince Fong changed his mind too late.
D. Inapplicable Arguments
There are two arguments that have been raised in the media that may sound appealing to a layperson but are likely non-meritorious arguments.
First, Vince Fong is quoted himself as saying that the Secretary of State has no power to prevent him from being on the ballot because the Secretary of State has only ministerial authority. Television commentator Jessica Levinson has opined that the law prohibiting running for more than one office at a time could be challenged in court as “outdated”.
Fong is incorrect. The Secretary of State is in charge of running elections in California.59 The Secretary of State cannot allow candidates to run in violation of the Elections Code.60 Levinson is also incorrect. Courts don’t strike down or ignore laws simply because the court, in its infinite wisdom, decides that a law is outdated or that the court dislikes the law.61
IV. Conclusion
I caution before making any bold predictions, however, that predicting what a court will rule in an election law case is a risky proposition.
Typically, courts will receive election challenges just prior to the election. These election challenges are often resolved within one day without any jury trial or discovery you might have in typical litigation. These cases are and handled by a single judge with only passing knowledge of the California Election Code. The argument that might not win a trial or win over a Court of Appeals might win the day.
When that happens, the ballots are usually printed right away. And the election will be held even if the judge’s order is demonstrably wrong. Election challenges are often unpredictable because there’s very little case law precedent from higher courts. The reason for this is that appeals are basically fruitless. The election will occur and there’s effectively no remedy.62
Applying the legal precedents, Fong will not be allowed to take his name off the ballot in the 32nd Assembly District and run in the 20th Congressional District. However, what an individual court will decide to do in Fong’s case is not a certain outcome by any means.
https://www.politico.com/news/2023/12/12/california-house-mccarthy-succession-00131248
https://www.kget.com/news/politics/your-local-elections/congressional-candidate-chaos-kerns-voters-react-to-looming-lawsuit-among-vince-fongs-bid-for-kevin-mccarthys-seat/
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
https://www.bbc.com/news/world-us-canada-67642504
https://elections.cdn.sos.ca.gov//statewide-elections/2024-primary/section-05-primary-election-calendar.pdf
https://elections.cdn.sos.ca.gov//statewide-elections/2024-primary/section-05-primary-election-calendar.pdf
https://www.tehachapinews.com/news/fong-changes-mind-throws-hat-in-ring-after-grove-says-she-wont-run-for-mccarthys/article_0738ad86-9886-11ee-8a49-8316bab7067b.html
https://thebusinessjournal.com/assemblys-fong-reverses-course-announces-run-for-mccarthy-seat/
https://abc30.com/vince-fong-kevin-mccarthy-california-seat-20th-district/14172715/
https://www.sos.ca.gov/administration/news-releases-and-advisories/2023-news-releases-and-advisories/secretary-state-announces-determination-californias-20th-congressional-district