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Wednesday, April 1, 2020

W.Va. SC: Senator's election opponent must be removed from ballot

By Jessica M. Karmasek | Mar 1, 2012




CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals, in a brief, three-page order Wednesday, ruled that a state lawmaker's election opponent must be removed from the May primary ballot.

The state's high court issued its order, granting state Sen. Donna J. Boley's writ of mandamus mere hours after lawyers for Boley and respondents Secretary of State Natalie Tennant and former state Sen. Frank Deem presented their arguments.

Boley, a Republican, filed an emergency petition for a writ with the Court Feb. 15.

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.

The Court concluded that the residency dispersal requirements apply to the election of senators from the Third Senatorial District, and require that "no more than one senator shall be chosen from the same county or part of a county to represent such senatorial district."

"Because one of the incumbent senators in the Third Senatorial District is a resident of Wood County, the residency dispersal requirements do not permit another Wood County resident to be chosen in that district," the justices wrote.

"Accordingly, the respondent Frank Deem -- who is a resident of Wood County -- is prohibited from becoming the second resident of Wood County to be nominated or elected as one of the senators from the Third Senatorial District."

The Court ordered that Tennant withdraw Deem's certification of candidacy, to command ballot commissioners in Pleasants, Roane, Wirt and Wood counties to remove his name from the official ballots, and to inform all election officials to refrain from tallying any votes cast -- absentee, write-in or otherwise -- for Deem.

The justices said they would file their full opinion "in due course."

During arguments earlier Wednesday, Boley's lawyers said the state constitution was "very clear" on the issue.

Anthony Majestro, who represented the longtime state lawmaker, noted that Deem isn't completely forbidden from running.

"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 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.

From Legal Newsline: Reach Jessica Karmasek by email at

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