W.Va. lawmaker asks state SC to remove primary opponent

Jessica M. Karmasek Feb. 16, 2012, 4:30pm




CHARLESTON, W.Va. (Legal Newsline) - A West Virginia lawmaker is asking the state Supreme Court of Appeals to remove her primary election opponent from the May primary ballot.

Sen. Donna J. Boley, R-Pleasants, filed an emergency petition for writ of mandamus with the state's high court Wednesday.

Secretary of State Natalie Tennant and former state Sen. Frank Deem are the named respondents in the case.

At issue is whether the residency dispersal provisions of the West Virginia Constitution and state code require Tennant to exclude from the ballot a candidate whose filing for office, nomination and election would violate those provisions -- in this case, Deem, who filed in January to again run for the Senate.

Boley, a resident of Pleasants County and who last reelected in 2008, is currently seeking the GOP nomination in the state's May 6 primary for reelection in the Nov. 6 general election.

Deem was defeated by now Sen. David Nohe in the May 11, 2010 primary. Nohe was elected to a four-year term in the November 2010 general election.

Both Deem and Nohe are residents of Wood County.

Boley argues that the state's residency dispersal provisions prohibit both senators in a district from being chosen from the same county when the senatorial district is composed of more than one county.

"In spite of this clear prohibition, on Jan. 26, 2012, Deem filed to run as a candidate for the Third Senatorial District," the lawmaker wrote in her 21-page filing.

For her part, Tennant has certified Deem as a candidate and has refused to remove him from the May ballot, Boley said.

Tennant issued a statement Wednesday, noting that she is "neutral" in the suit.

"This petition involves a dispute over whether or not a candidate is eligible to be elected and involves conflicting provisions of the West Virginia Constitution and the United States Constitution," she said.

"Obviously the Secretary of State does not decide disputes over the constitution and I am neutral in this suit. The Secretary of State's Office welcomes this petition as an opportunity to resolve the dispute for this and all future elections."

Tennant said her office is named as a respondent simply because it notifies the county clerks what candidates are on the ballots.

Ballots, she noted, must be printed and delivered to overseas military and citizens no later than March 23.

"It takes the ballot printer several weeks to prepare all of the hundreds of different ballot designs, have the designs proofed by the county ballot commissioners, printed and delivered. Therefore, it is urgent that the Court decide this issue quickly," Tennant said.

Deem was against a redistricting proposal -- which was ultimately adopted -- combining Wirt, Wood, Pleasants counties and parts of Roane County to form the current Third District.

When his attempts failed, he joined a lawsuit challenging the Senate redistricting plan.

In November, the Supreme Court voted 5-0 not to change the Senate districts.

"Deem's argument that he believes the statutory and constitutional residency disbursal requirements violate the U.S. Supreme Court's one-man, one-vote jurisprudence has been rejected at least three times by the Supreme Court of the United States," Boley wrote.

"West Virginia state and federal decisions confirm the continued validity of these rulings."

Boley is asking the Court to grant her writ and order Tennant to withdraw her certification of Deem's candidacy and further order that Tennant direct the ballot commissioners for Wood, Wirt, Pleasants and Roane counties to not include Deem on the primary election ballots.

She also is asking that Tennant direct all election officials to "disregard and refrain from tallying, tabulating, certifying or returning any vote cast, absentee, write-in or otherwise" for Deem.

According to scheduling order filed by the Court Wednesday, Tennant and Deem must file a response to Boley's petition on or before 5 p.m. Tuesday.

"In due course thereafter, counsel of record will be notified in writing of any decision in the case," the Court wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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