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W.Va. SC explains ruling in case over election opponent's removal

By Jessica M. Karmasek | Apr 13, 2012



CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals, in a full opinion filed this week, elaborated on its decision in February to have a state lawmaker's election opponent removed from the May primary ballot.

The state's high court issued its Feb. 29 order, granting state Sen. Donna J. Boley's writ of mandamus, 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 was whether the residency dispersal provisions of the West Virginia Constitution and state code required 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 was last reelected in 2008, is currently seeking the GOP nomination in the state's May 8 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.

In its brief, three-page order, 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.

In its full, 16-page opinion Thursday, the Court explained its reasoning further.

"Mr. Deem is correct that we have recognized that the right to become a candidate for public office is fundamental in nature, and that restrictions on the exercise of that right must serve a compelling state interest," Chief Justice Menis Ketchum wrote for the Court.

"What Mr. Deem fails to accept is that the utilization of (multi-member) districts has existed in the State of West Virginia for almost a century and a half and has withstood numerous constitutional challenges.

"There is no constitutional, statutory, or other authority prohibiting the utilization of such districts. In fact... several courts addressing redistricting and surrounding issues have specifically approved multi-member districts."

From Legal Newsline: Reach Jessica Karmasek by email at

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State of West VirginiaVirginia Supreme Court West Virginia Supreme Court of Appeals