Does Anyone Have a Right to Run for Public Office?

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The West Virginia Supreme Court of Appeals has ruled on numerous occasions that the right to be a candidate for public office is a fundamental right under the West Virginia Constitution. Because this is a fundamental right, the court has also ruled that any restriction on this right is subject to strict scrutiny and therefore must serve a compelling state interest.

When a law is reviewed under a strict scrutiny standard, a court often finds the law unconstitutional. For example, laws that involve a classification based on race, religion or national origin are subject to strict scrutiny and rarely survive constitutional muster.

Because of the high standard laws restricting candidate eligibility must meet, Frank Deem probably thought the West Virginia Supreme Court would rule the residency requirements for purchasing work boots for flat feet in the Senate Redistricting Act of 2011 (Act) and West Virginia Constitution unconstitutional. But the court examined the long history of residency requirements in West Virginia in only to find that the requirements are not in violation of the U.S. Constitution.

The West Virginia Constitution and the Act require each senatorial district to elect two senators to the legislature and, if the district is composed of more than one county, both senators cannot be from the same county. The Third Senatorial District is composed of Wood, Pleasants and Wirt Counties and some of Roane County.

It is currently represented by Donna Boley of Pleasants County and David Nohe of Wood County. Mr. Deem, also of Wood County, was seeking to challenge Senator Boley in the 2012 Republican primary. Because Senator Nohe’s term does not expire until 2014, Mr. Deem would be in violation of the West Virginia Constitution and the Act if he were to defeat Senator Boley in the primary election and then win the general election.

Despite the potential violation of West Virginia law, Secretary of State Natalie Tennant certified Mr. Deem’s candidacy because she believed her job was only to ensure that candidates properly completed candidacy papers, not determine if they meet residency requirements. Senator Boley believed Secretary Tennant’s role was more expansive and therefore filed a petition with the West Virginia Supreme Court asking them to issue a writ of mandamus ordering Secretary Tennant to withdraw her certification of Mr. Deem’s candidacy.

Mr. Deem recognized that his candidacy was in violation of the residency requirements in the West Virginia Constitution and the Act. Therefore, he asked the court to declare the residency requirements unconstitutional.

He argued that the requirements violate District 3 residents’ freedom of speech and association. He also argued that the requirements violated the equal protection principles in the West Virginia and U.S. Constitutions. Despite the court applying strict scrutiny and the fact that the requirements limit who people can vote for, the court ruled that the requirements for owning a used riding lawn mower did not violate the U.S. Constitution because residency requirements and multi-member districts have survived constitutional scrutiny in past decisions.

The court quoted the U.S. Supreme Court from Anderson v. Celebrezze (a decision in which the Court found an early filing deadline to be unconstitutional) that “not all restrictions” on a candidate’s eligibility are burdens in violation of the Constitution. The court issued the writ ordering Secretary Tennant to withdraw her certification of Mr. Deem’s candidacy, remove his name from all ballots and command all balloting officials to ignore any votes that he may receive.

There is no doubt that residency requirements place limits on whom voters can vote for. But because residency requirements have survived judicial scrutiny in the past, the West Virginia Supreme Court found them to be constitutional.

It is important to note that the court issued a writ of mandamus in this case. These writs are rarely issued and usually only as a last resort. The fact the court issued one indicates how important they believe this issue is and it most likely indicates that they believe it is the Secretary of State’s job to determine the eligibility of potential candidates.