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Ex-senator says he may sue over ballot access

CHARLESTON, W.Va. -- A former state senator said Monday he will file suit in federal court if the secretary of state's office refuses to put him on the May primary ballot.Frank Deem, a Wood County Republican, filed Thursday to run for one of two 3rd District state Senate seats.But Deem said he received a call Saturday from Tim Leach, an attorney in the secretary of state's office, advising that the office would not certify his candidacy under a state law that prohibits more than one senator representing the same county in any multi-county senatorial district.Deem has filed to run against Sen. Donna Boley, R-Pleasants, in the May primary. However, the provision in state law -- West Virginia Code 6-6-4 -- would bar him from serving in the Senate, since the district's other incumbent, Republican Sen. David Nohe, lives in Wood County.Nohe, who defeated Deem in 2010, is not up for re-election this year.Deem said he believes the state law is in violation of the one man-one vote requirement in the U.S. Constitution, since the wishes of a majority of voters in a senatorial district could be nullified under the state requirement."I would like to get this to federal court," Deem said Monday. "It won't hold up under one man-one vote." Leach did not return calls Monday. But Jake Glance, spokesman for Secretary of State Natalie Tennant, issued a statement Monday that said, "We did not tell Mr. Deem that he would not be on the ballot. This weekend, our office advised him that his filing would be reviewed -- and that review would include our office and the candidate."Glance said Tennant's office has until Feb. 14 to certify the list of candidates for the 2012 primary election.Deem said he believes the state law on multi-county senatorial districts is unconstitutional, because it gives voters in less-populated, rural counties more influence to elect senators.He said that, under the Senate redistricting plan adopted last year, half of the 34-member Senate will come from counties representing just 22 percent of the state's population -- if the provision is not overturned.
"As you might imagine, I have done quite a bit of research on this issue and believe we will be successful in the federal court, if not the state court," Deem said.Deem also contends that the secretary of state's office cannot decline to certify his candidacy, since it allowed the same scenario to play out in 2010.That year, Tom Ditty of Elkins in Randolph County was certified to run against Sen. Walt Helmick, D-Pocahontas, in the primary election, even though Ditty could not have served in the Senate under the current law, since he was from the same county as incumbent Sen. Clark Barnes, R-Randolph.Helmick defeated Ditty in the primary election, making the issue moot that year.
Reach Phil Kabler at or 304-348-1220.     
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