By Miriam Raftery
June 17, 2019 (San Diego) – Congressman Duncan D. Hunter’s trial on 60 counts of federal corruption charges is scheduled for September. He has pleaded not guilty. However, last week his wife, wife, Margaret, pleaded guilty to one count of conspiracy and is now cooperating with prosecutors. Court documents reveal that she has implicated Rep. Hunter in serious crimes and affirmed that the campaign treasurer told the Hunters that their actions were illegal, but his advice was ignored. Hunter is accused of spending $250,000 of campaign funds for personal use and falsifying federal campaign finance filings to cover up the thefts.
If Congressman Hunter is convicted and either resigns or is expelled by the House of Representatives, a vacancy would be declared and a special election could be called. When or if that could occur, however, depends on several factors.
Does Hunter have to leave office if convicted?
There is no law requiring removal of a Congressman convicted of crimes, even if the member is imprisoned and unable to cast votes. However, the House of Representatives can choose to expel the member once convicted – and with Democrats in the majority in the House, they could vote to eject Hunter, a Republican; however this would require a two-thirds vote so some Republican votes would be needed. Expulsion could occur after conviction on felony campaign finance crimes even if President Trump were to pardon Hunter, a staunch Trump supporter, for any crimes committed. Or Democrats could opt to leave Hunter in his seat, albeit behind bars, a tactic that could help boost his Democratic opponent’s chances in the 2020 election.
It’s also possible that the Republican party could urge Hunter to resign if convicted, in order for the party to back another Republican more likely to defeat a Democratic rival.
If Hunter is convicted but won’t resign and isn’t expelled, can he still represent his district behind bars?
Once convicted, Hunter would be prohibited from casting votes from a prison cell, leaving his 50th Congressional district without representation on legislation. He has already been removed from all House committees pending the outcome of his trial. If convicted, however, as long as Hunter remains in office without resigning or being formally expelled, his staff can legally continue to handle constituent casework, such as helping constituents who have problems with federal agencies.
When and how would a vacancy be filled, if Hunter resigns or is expelled?
The U.S. Constitution, Article I, section 2, clause 4 states: “House vacancies can be caused by death, resignation, declination, withdrawal, or House action, but the Constitution requires that they be filled by election.” (https://history.house.gov/Institution/Vacancies-Successors/Vacancies-Successors/)
The Governor cannot appoint anyone to fill the vacancy (except in a national emergency where there are more than 100 House vacancies). But how and when to convene a special election to fill a House vacancy varies from state to state.
California Election Code sections 10700 to 10704 requires that within 14 days of a Congressional vacancy occurring, the Governor must issue a proclamation ordering a special election. There must be a both a primary and general election called to fill the vacancy, unless one candidate wins 50% + 1 vote in the primary, in which case no general election would be held.
See these resources: Elections Code 10700-10704: http://leginfo.legislature.ca.
March 3, 2020 Presidential Primary: https://www.sos.ca.gov/
March 3, 2020 Presidential Primary Key Dates and Deadlines Calendar: https://www.sos.ca.gov/
When would a special election be held?
The special primary election must be held on the 9th Tuesday after the Governor’s proclamation, unless that falls after a Monday holiday, in which case the election would be on the 10th Tuesday. If no candidate wins 50% plus 1 vote in the special primary, then a general election would be held between 126 and 140 days from whenever the vacancy occurred.
But there is a big caveat that could alter that process.
If the vacancy occurs late in the term, after the nomination has already closed for a regularly scheduled primary election, then the Governor could choose to consolidate the special primary election with the regularly scheduled primary race.
California has moved its primary in 2020 up to the first Tuesday in March. (Formerly, the state’s primary was held in June.) The nomination deadline for candidates to file to run for a Congressional seat in that March 2020 primary is December 6, 2019.
So if Hunter resigns or is expelled from office before December 6th, a special primary election would be mandatory. Potentially, if Hunter were convicted in September or October and a vacancy declared soon after due to resignation or expulsion, a special election could occur as early as December or January. If the vacancy happens after December 6, it would be up to the Governor whether to put the primary race for the vacancy on the March 6 ballot to save taxpayers money, or push for an earlier special election.
In either case, whether the special primary election were held on or before March 6, the general election, or run-off, to fill the 50th Congressional district vacancy would still have to occur far earlier than the November 2020 general election to meet the 126 to 140 day (four and a half months maximum) legal requirement. So taxpayers will be stuck funding a special general election, unless one candidate takes over half the votes in the special primary.
So if a special election is held, even if the special primary were consolidated with the March 6 primary, the district would have a new representative elected no later than summer 2020 and potentially sooner, if one candidate should win over half the votes in the primary.
What if Hunter is found not guilty?
If Hunter is found not guilty, he could legally hold onto his seat in Congress and run for reelection. It would then be up to voters to determine whether he remains long-term. With the district’s heavy Republican registration advance, it’s quite possible that he could win another term if exonerated and not expelled.
It’s also possible that the Republican Party could decline to endorse Hunter and back another candidate in the next primary election.
Since the House sets its own rules, it’s still theoretically possible that the House could choose to expel Hunter on ethics grounds after conducting its own investigation, even if he were acquitted, but that would seem unlikely given historical precedent and the need for some GOP votes. However House Ethics rules do state that a member "may not convert campaign funds to personal use in excess of an amount representing reimbursement for legitimate and verifiable campaign expenditures" and with limited exceptions, "may not expend funds from a campaign account of such individual that are not attributable to bona fide campaign or political purposes."
What if he is convicted, but pardoned by the President? Hunter could potentially keep his office, though prohibited from voting while behind bars. He could run for reelection even if convicted and imprisoned for federal crimes. But a pardon could restore voting privileges that would otherwise be revoked if an extended sentence is imposed. The House Code of Ethics states under House of Representatives Rule XXIII(10) that any member convicted of a crime for which a sentence of two years or more may be imposed ”should refrain from participation” in committee business and “should refrain from voting” until and unless vindicated, pardoned, or reelected."
Who else may run for the seat?
Democrat Ammar Campa Najjar, who came within a few percentage points of defeating Hunter in 2018 has been actively campaigning for the 2020 race. Three Republicans have voiced interest in running but it is unclear whether they would do so if Hunter remains in office. They are El Cajon Mayor Bill Wells, retired Navy seal Larry Wilske, and Temecula Councilman Matt Rahn. More candidates could potentially join the race before the Dec. 6 deadline for the March primary, or potentially an earlier filing deadline if a special election is called sooner.
Is there any certainty for the future of the 50th Congressional district? An elections expert with the state, speaking on background, told our editor that there is one certainty in the coming months for voters in this district.
He concludes, “It will be a very confusing time.”