The West Virginia Secretary of State has put Frank Deem on the Republican primary ballot, for State Senate, 3rd district, after first having told him he could not appear on that ballot. See this story, which was written before the Secretary of State put him on the ballot. The primary is May 8.
West Virginia has multi-member State Senate districts. When a Senate district has two Senators, one is up for election in presidential years, and the other is up in mid-term years. The West Virginia Constitution says when a Senate district is composed of several counties, no more than one resident of any particular county may serve. The Secretary of State originally rejected Deem because the 3rd State Senate district already has one Senator from the county that Deem lives in. Deem argues that the state Constitution violates the U.S. Constitution, and apparently his argument was convincing enough to persuade the Secretary of State to let him run. No Democrat filed in the 3rd district, so if Deem wins his primary, he is virtually certain to be elected, and then the issue may go to court. Thanks to Bill Van Allen for the link.
The article appears to have been re-written. While you noted that it is a constitutional provision, the article indicates a provision in state law (it is possible that both are correct, the constitution provides for senate districts comprised of whole counties, which was overturned many years ago).
The article also suggests that the SOS had just told Deem that his filing would be reviewed along with that all of the other candidates. It is quite likely that Deem filed as sort of a test case, and then immediately roared to the press.
The reason that Wood County (Parkersburg) already has a senator, is because Deem was defeated in the Republican Primary in 2010 by David Nohe, also of Wood County. Ironically, Deem carried the 3 smaller counties, while Nohe carried Wood County, which has about 80% of the district population.
Deem has served 40 years in the legislature, 10 in the House of Delegates, 30 in the Senate. These were not continuous service. Deem was first elected to the House of Delegates in 1954 (at age 26, he is now 83).
His last stint as senator was from 1994-2010, 4 terms, during which he would have been the Wood County senator from the district. It would be curious whether he had expressed concern about the good citizens of his county being denied equal representation during that time.
I suspect that after he was beaten, he realized that he wouldn’t be able to run until 2014, and started figuring out how to get back in the legislature. He told the reporter, “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.” So not only had he researched the law, but he expected others would know that he had.
Of court the real problem here is with multi-member districts. Even when elected by position in separate years, they are likely to lead to domination by a particular party, race, or geographical area. Deem and Nohe are not only from the same county, but the same city of Vienna. If West Virginia wanted to address Deem’s claim they could simply draw two residential areas of equal population and require separate residency.
While I wish him well, if I’m not mistaken, I recall that this argument or similar has already been litigated here in defeat.
But, if he wins, it will pave the way to getting rid of our gerrymandered state senate districts and replacing them with eleven simple 5-county districts regardless of population. Three senators from eleven such districts would yield a state senate comprised of thirty-three members versus the current thirty-four, so it is quite a feasible plan.
Also, if the federal Senate analogy argument proves victorious, THAT will pave the way to allowing the county commissions to select state senators much the way the U.S. Senate was determined prior to the 17th Amendment.
Godspeed, Frank!