W.Va. SC hears arguments in candidacy case

By Jessica M. Karmasek | Feb 29, 2012





CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals on Wednesday heard arguments in a case in which a state lawmaker is asking the Court to remove an 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 Feb. 15.

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.

Anthony Majestro, who represented Boley at Wednesday's arguments, said the state constitution "makes very clear that when there is more than one county and the other senator is a resident of your county, you can't file to run."

But that doesn't mean Deem is completely forbidden from running, Majestro noted.

"It's not that he can't run, it's that he can only run when there's a vacancy to run. And there's no vacancy, in this case, because state code requires residency dispersal," he told the justices.

Boley, a resident of Pleasants County and who was 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.

Jonathan Deem, who spoke on behalf of Deem and is of no relation, argued that the case is about ballot access.

"The right to be a candidate is a fundamental right," he told the Court.

During his arguments, Deem also pointed to the makeup of the Third Senatorial District. The district is composed of Wood, Wirt, Pleasants counties and a portion of Roane County.

However, the vast majority of the population resides in Wood County.

In fact, Wood County residents outnumber other residents in the district by a ratio of about five-to-one.

Deem argued that the residency dispersal restrictions, as applied to the district, are infringing upon the rights of the district's citizens to run for office and the rights of the voters to elect candidates of their choice.

"The relevant boundary lines of District Three, coupled with the draconian rule that no two senators from the same district may reside in the same county, ensures that over 80 percent of the District Three population is prohibited for running for senate in any election when there is already an incumbent senator residing in Wood County," he wrote in a Feb. 21 response filed with the Court.

"The same rules guarantee that independent and minor party candidates have virtually no access to the ballot."

Deem told the Court that the case boils down to fair, competitive elections.

"Competitive elections are a good thing," he said. "But we're not seeing that in the Third District right now. The residency dispersal provision is unconstitutionally depriving residents of Wood County and the other counties of proper representation."

Majestro, in his rebuttal, argued that there is "no factual record" to support that elections in the Third District have not been competitive.

While Boley has run unopposed in almost every election since being appointed to the Senate in 1985, Majestro said there is no constitutional significance.

"It's not unusual in districts where an incumbent's party has substantial success to not have opposition," he pointed out.

"Sen. Boley also is a good representative, representing all people in the districts well. She's being doing so for a long time, successfully."

Majestro said if the Court found in favor of Deem, and allowed him to remain on the ballot, it would "create quite a mess."

He pointed to the Court's most recent decisions regarding redistricting.

"We're just here on the Third Senatorial District. But 16 other districts have this same problem. Only one district is made up solely of one county, and that is Kanawha County," Majestro explained.

"Leaving Mr. Deem on the ballot could create substantial problems in all of these other elections."

Assistant Attorney General Thomas Rodd, who represented Tennant Wednesday, said the Secretary of State's Office refused to take a position on the underlying merits of the case.

In her original filing, Boley argued that Tennant was responsible for certifying Deem as a candidate and has since refused to remove him from the May ballot.

Rodd noted that "going behind the four corners of a filing certificate" is a "very slippery slope."

"Without any specific legislative authorization to do that... we're talking about some very serious due process concerns," he told the justices.

Rodd also emphasized that Tennant's office is up against a hard deadline.

In a statement earlier this month, the secretary of state noted that ballots 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.

Chief Justice Menis Ketchum assured Rodd that an "expedited decision" would be made before Friday.

As for relief, 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.

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

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