- The Washington Times - Sunday, September 1, 2002

RICHMOND The southwestern Virginia voters who originally elected Madison Marye to the state Senate three years ago should decide who serves the final year of his term, not voters in Washington's suburbs, a lawsuit filed Friday contends.
Mr. Marye, who gave up his 39th District seat a month ago, asked Montgomery County Circuit Court to order the special election to choose his successor held in the rural, mountainous area of his former district.
The lawsuit is the second legal battle to arise from the state's confusing procedure for holding special elections in newly reapportioned Senate districts.
It also clouds a special election set for Nov. 5 in the new 39th District, moved last year by redistricting to Northern Virginia, 250 miles northeast of its previous boundaries.
"Frankly, we feel that the 170,000 people who lived here and elected Madison Marye in 1999 will be without a voice for the next year, which includes the next session of the General Assembly and any special sessions that would be called," said Jonathan McGrady of Hillsville, Mr. Marye's attorney.
"If this special election goes on as planned in Fairfax, we believe voters in Madison's old district will be disenfranchised, and one senator short can make a big difference for Southwest Virginia when it comes to allocations of money for education, schools, roads and economic development," Mr. McGrady said.
Specifically, the lawsuit asks the court to order that the new election occur either in the old 39th District lines or in a district that most closely approximates Mr. Marye's former district.
In arguing this point, the lawsuit cites an opinion issued last year by former state Attorney General Mark L. Earley noting that a special election "following redistricting must be conducted based on [the] new district that most closely approximates the district" from which the former officeholder was elected.
Also cited is a section from the Code of Virginia that states that if a vacancy in an elected office occurs after the redrawing of districts required every 10 years, "the vacancy shall be filled from the district in the decennial redistricting measure which most closely approximates the district in which the vacancy occurred."
The new 39th District bears no relationship at all to the old 39th district, "except for the purely technical fact that gave the number 39" to both, the lawsuit contends. The only point of agreement among the feuding parties in the lawsuits is that the state's process for filling Senate vacancies after redistricting needs a fix.
The state constitution makes new legislative and congressional districts effective as soon as they are signed into law every 10 years. After the 1991 redistricting, it was no problem because all 40 Senate seats were up for election that year.
After the 2001 reapportionment, however, two years remained on Senate terms, and special elections to fill vacant seats must be held under the new boundaries. That's like trying to put together pieces from different puzzles, with new districts overlapping old ones in some places and leaving some voters feeling they have no representation.
Three such elections have been held so far to fill vacancies created in the 25th District by state Sen. Emily Couric's death, in the 14th District by former state Sen. J. Randy Forbes' election to the U.S. House of Representatives and in the 37th District by former state Sen. Warren E. Barry's resignation to take a post in Gov. Mark R. Warner's administration.
Mr. Barry's departure spawned a federal lawsuit in June claiming that as many as 48,000 voters who lived in Mr. Barry's old district would be left out of the redrawn 37th District. They lived in areas that would be part of the new 39th District, and their senator, Mr. Marye, was a cattle rancher in the Roanoke Valley.
Washington lawyer Lee E. Goodman said in his lawsuit that his clients were disenfranchised and made Mr. Marye a defendant. Mr. Marye, the longest-serving member of the state Senate, decided he had had enough and retired Aug. 1.
His retirement set up a Nov. 5 special election in the new district in Northern Virginia and prompted Mr. Goodman to drop his lawsuit. Believing his constituents had no voice, however, Mr. Marye hired Mr. McGrady and went to court.
"This is serious. I'm dead serious about this. I think I'll feel much better if it is decided by a court," Mr. Marye said.
Delegate James K. O'Brien Jr., Fairfax County Republican, said he was confident that courts would rule that the election should be held in Northern Virginia, where he is running for the Senate seat. He acknowledged, however, that the system is archaic and said he has drafted legislation that would require state Senate special elections in years after reapportionment to be held with old district lines.
"What happens is the worst combination of circumstances," he said.
Attorney General Jerry W. Kilgore, who will defend the state law against Mr. Marye's challenge, is confident the law is constitutional, Kilgore press secretary Tim Murtaugh said.
"That said, he recognizes that every 20 years there is this quirk that could arise, so he intends to get together with the General Assembly and see what can be done to tighten this up a little bit," Mr. Murtaugh said.

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