The Sacramento Superior Court Gets it Wrong in the Vince Fong Ballot Access Case
A California Court Decision Demonstrates the Problems With Using the Fourteenth Amendment to Remove Donald Trump From the Presidential Ballot
When Kevin McCarthy retired from Congress, he chose Assemblyman Vince Fong (R-Bakersfield) as his handpicked successor. However, Fong had already submitted paperwork to run for re-election to the Assembly.1 Under California law, Fong cannot remove his name from the Assembly ballot.2 Moreover, in California, one cannot run for two elected offices at once.3
Accordingly, the California Secretary of State ruled that Fong could not be on the Congressional ballot.4 Fong then filed a lawsuit to get onto the ballot.5 Last week, I wrote that Fong’s legal arguments were weak but noted that the outcome of the case was unpredictable because it was an election writ case.6
On Thursday, with minutes to go before the 5 pm deadline for the official certified list of candidates, a Sacramento Superior Court judge ruled in favor of Fong.7 The judge decided that a statutory provision prohibiting candidates running for more than one office at once was inapplicable. The Secretary of State has promised to appeal the decision, but for now has included Fong on the certified list of candidates.8
The decision is manifestly wrong.9
Here’s why. The California Elections Code requires that when one files a declaration of candidacy for an office, one swears to not withdraw from the election and to accept a nomination.10
In Moore v. Panish,11 the California Supreme Court held that one could be a candidate for a non-partisan water district and a candidate for the Democratic County Central Committee simultaneously.12 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.13
The Court, analyzing the Elections Code, reiterated that one could not run for two elective offices simultaneously, explaining:
Courts of other states have held that a candidate may not be named on the same ballot for two offices where the candidate would not be permitted to hold both offices if elected, even in the absence of specific statutory language like that in the California statute. In State ex rel. Fair v. Adams (Fla. 1962) 139 So.2d 879 (where a candidate for state railroad and public utilities commissioner sought to become a candidate for state senator and state representative as well) the court reasoned that the candidate could not truthfully make the oath required of candidates that he would fill each office to which he might be elected where the state Constitution prohibited him from holding both offices for which he sought nomination. In Burns v. Wiltse (1951) 303 N.Y. 319 [102 N.E.2d 569] (where a nominee for district attorney was later nominated for county judge) the court stated that the spirit and intent of the election law forbade dual candidacy where the candidate might not take and hold both offices because of a statutory prohibition. (See generally, 94 A.L.R.2d 557.)
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.14
In Keane v. Smith,15 the California Supreme Court addressed an election challenge between two candidates for the Sierra County Superior Court.16 One candidate cited an Illinois decision allowing a candidate to run for more than one office at a time to argue that votes accidentally cast for him in another race should be counted towards him.17
The Court rejected the argument, explaining “Under section 6491 [of the California Elections Code], a candidate is required to declare that he will accept nomination, not withdraw, and if nominated, qualify for any office for which he is a candidate. Obviously, a candidate could not file such a declaration for two incompatible offices. Thus, in California one is effectively prohibited from being a candidate for two incompatible offices at the same election.”18
The legal provision addressed in both cases was then California Elections Code Section 6491. This legal provision was re-enacted in 1994 as Elections Code Section 8040 without substantive change.
In 1994, California still had party nominations for elections to the United States Senate, United States House of Representatives, State Senate, State Assembly, State Board of Equalization, and most statewide elected offices. In 2010, this system was changed to make these offices voter-nominated offices, where political parties no longer nominate candidates for general elections but voters do instead.19
However, Section 8040’s requirement to accept the nomination was not repealed in 2010. It still applies to candidates for these offices. The only difference is that candidates for these offices now have to state their registered political party for the past ten years prior to running for office.
It’s a foundational rule of statutory interpretation that when courts interpret statutes and the language is re-enacted by the Legislature without change, the court’s previous interpretation of the law is accepted as the new law.20 Moreover, courts strongly disfavor repeals of laws by implication.21
There’s no evidence that in getting rid of party nominations that either the Legislature or the voters intended to repeal the rule that one could not run for more than one elective office at a time. Nor is the new voter-nominated system inconsistent with candidates only being able to run for one office at a time.
The Superior Court has also seemingly misread the statute prohibiting multiple candidacies itself. The statute provides that this section of the Elections Code does not prohibit independent nominations for President, but maintains existing restrictions on candidates.
Now, I have no dog in this fight politically. The 20th Congressional District is one of the few in California that is ultra safe Republican. The battle here is between different factions of the Republican Party.
But the decision is legally wrong. If allowed to stand, it will open the door to candidates running for multiple offices at once. Barring a successful appeal that is timely decided, Fong’s name will appear on the ballot for both the 33rd Assembly District (where he is the only candidate) and the 20th Congressional District.
This case demonstrates a larger point about the role of courts as a tool against political candidates who clearly do not belong anywhere near an elected office.
The judge in this case does not appear to be biased or a poor judge. She appeared thoughtful and principled. Fong’s lawyer is an excellent attorney, one of the leading political attorneys in the state. I have faced him before as an adversary.
If the lawyers for the Secretary of State’s office failed to bring their A-game against him, it’s unsurprising that in an extremely brief hearing at the last minute, he persuaded the judge to order Fong onto the Congressional ballot.
This is the nature of election writ cases where some aspect of the ballot is challenged.
Every election year, California Superior Courts will hear multiple writ petitions addressing what will be printed on the ballot. These challenges relate to the candidate’s ballot designation, the candidate’s name, the right of a candidate to run for the office in question, and the candidate’s voter guide statement. Ballot measure titles and summaries are also challenged too.
Usually, the cases will all be heard on a single day, typically right before the deadline to print ballots. One judge, usually unfamiliar with election law, will be assigned to hear all the cases at once.
There is no traditional trial. There is no discovery, cross-examination of witnesses, or examination of evidence. A judge decides without any jury. There are very few appeals because whatever the result, it’s a moot point once the ballot goes to print.
It’s entirely possible that the decision in Fong’s case will be reversed on appeal but have no impact because the election has already happened.
Many have celebrated the decision of the Colorado Supreme Court that Donald Trump was barred by the 14th Amendment’s Insurrection Clause from running for President. Polling has shown that a decisive majority of Americans agree with the decision.22
I, however, am not cheering the decision.
The United States Constitution requires that to serve as President, one must be (1) a natural born United States citizen, (2) at least thirty five (35) years old, and (3) have resided in the United States for at least fourteen (14) years.23
Whether a candidate meets those requirements are fairly ascertainable facts. If someone running for the Presidency has their right to be on the ballot challenged, those facts could be easily proven or disproven in court.24 An elections official, without the benefit of court action, could deny placement on the ballot to an individual who did not meet those basic requirements.
The Colorado Supreme Court held that there is an additional set of requirements added by Section 3 of the Fourteenth Amendment that can be evaluated by the courts. Section 3 of the Fourteenth Amendment provides in pertinent part:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, o r under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”25
The reasoning for keeping Donald Trump off the ballot is straightforward.
Trump incited the January 6, 2021 insurrection at the U.S. Capitol. Thus, Trump is an insurrectionist. Trump previously swore an oath as President to support and defend the Constitution of the United States. Congress has not, by a 2/3rds vote, made him eligible to serve again. Therefore, he is barred from serving as President again. Accordingly, he should not be allowed on the Presidential ballot.
The Colorado Supreme Court agreed. Moreover, they agreed that a judicial determination at the lower court level should be reviewed deferentially. Basically, what the lower court finds as fact is what sticks, unless it is blatantly wrong. Thus, even if a candidate has not been convicted of the crime of insurrection, a court can make a determination and remove a candidate from the ballot.
Those who favor this decision argue that the Insurrection Clause is just an additional requirement to run for federal office. Trump couldn’t run for President if under 35, if he wasn’t born in the United States, or if he had not been resident in the United States for 14 years. And Trump can’t run for President because he’s an insurrectionist.
Here’s why I dislike this ruling. Unlike the initial constitutional requirements that are easily ascertainable, the Insurrection Clause requires subjective interpretation. The Constitution provides no definition for the term “Insurrection”. Nor does it provide a definition for what it means to “give aid and comfort to the enemies” of the United States.
It requires subjective decisions by courts and local election officials to decide whether candidates have committed acts against the United States without the opportunity of a full trial or a textually specific standard.
Now, I agree that the evidence is very strong that Donald Trump is an insurrectionist. However, if the interpretation of the Fourteenth Amendment Insurrection Clause by the Colorado Supreme Court is affirmed, it will not just apply to Donald Trump, but to all candidates for federal elective office.
Any smart group of lawyers can come up with an argument for why a candidate is disqualified that can persuade a potentially politically biased judge to take a candidate off the ballot. Under the Colorado Supreme Court precedent, that judge’s fact finding would be deferred to.
It is not uncommon for people to make accusations of disloyalty to the United States because of political positions and statements. Opponents of the Vietnam War and the War in Iraq were often branded as giving aid and comfort to the enemy. Congresswoman Maxine Waters (D-Los Angeles) has been accused of aiding and abetting insurrection for her comments during the 1992 Los Angeles Riots.
I wholeheartedly agree that these arguments are completely wrong. But it’s beside the point. The arguments exist and can be used by people to litigate whether a candidate for federal elected office can appear on the ballot. The Insurrection Clause could be used to keep individuals off the ballot, preventing them from exercising their constitutional right to be a candidate for office.
If you cannot defeat a candidate at the polls, you can use the Insurrection Clause to remove them. If a powerful entrenched political machine fears a candidate being able to defeat them, they have a strategy to stay in power. They can use the courts to keep that strong candidate off the ballot and force opponents to rely on a weaker candidate.
In the case of Vince Fong, we are not looking at a biased judge nor are we looking at lawyers making up reasons to disqualify a candidate from the ballot simply because they dislike him.
However, as explained, the decision to allow him to run for the 20th Congressional District and 33rd Assembly District simultaneously is manifestly wrong.
But it is understandable given how the system of election writs work. Imagine just how easy it would be for a judge to get an Insurrection Clause challenge wrong and prevent an otherwise qualified candidate from getting on the ballot for completely spurious reasons.
Many are currently worried about the state of democracy in this country. And rightfully so. And we have to take the threat to democracy very seriously.
However, I offer the following advice. If you have a venomous snake, a poisonous spider, a mouse, or a rat enter your home, you would be well advised to remove it. But you should probably not do so using a flamethrower or a hand-held rocket launcher.
This advice is equally applicable to politics and protecting democracy.
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/
Cal. Elec. Code § 8800 (“No candidate whose declaration of candidacy has been filed for any primary election may withdraw as a candidate at that primary election.”).
Cal. Elec. Code § 8003(b)(“No person may file nomination papers . . . for more than one office at the same election.”).
https://www.sos.ca.gov/administration/news-releases-and-advisories/2023-news-releases-and-advisories/secretary-state-announces-determination-californias-20th-congressional-district
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/
https://thehill.com/homenews/campaign/4381395-vince-fong-mccarthy-california-congress/
https://www.sos.ca.gov/administration/news-releases-and-advisories/2023-news-releases-and-advisories/secretary-state-responds-decision-fong-congressional-candidacy-case
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Cal. Elec. Code § 8840.
32 Cal. 3d 535 (Cal. 1982).