The West Virginia Democratic Party filed a petition with the state Supreme Court of Appeals to determine whether House Republicans correctly dealt with the seat of Joseph de Soto. (Perry Bennett | West Virginia Legislative Photography)
The West Virginia Democratic Party has asked the state Supreme Court to determine if House Republicans, who hold a supermajority, followed the state’s laws and constitution in filling a seat vacated by Joseph de Soto.
De Soto, who was elected as a Republican to represent an Eastern Panhandle district, switched his registration to Democrat shortly before being arrested for allegedly threatening to harm or kill Republican lawmakers. He is listed as a pre-trial felon.
Democrats, who currently have a nine-member House caucus, believe they have legal standing to fill the vacated seat. The state party filed a petition with the West Virginia Supreme Court of appeals on Wednesday; it lists House Speaker Roger Hanshaw and Gov. Patrick Morrisey as respondents.
“This is not just about one seat,” said state Democratic Party Chair Mike Pushkin, who is also a delegate. “This is about defending the rule of law and ensuring that the people of District 91 have their rightful representation in the House of Delegates. The actions taken by the House of Delegates undermine the integrity of our democratic process.”
The House passed a resolution Jan. 8 vacating de Soto’s seat. The resolution said that de Soto’s status on home confinement and at least two protective orders filed by lawmakers barring him from the state Capitol would make him unable to take the oath of office in the Capitol as required.
“ … The House of Delegates has determined that Delegate-Elect Joseph DeSoto does not qualify to serve as a member of the West Virginia House of Delegates, having failed to take the Oath of Office,” the resolution said.
In the Supreme Court filing on Wednesday, Democrats argued that elected delegates in prior sessions who were unable to attend their oaths office on the session’s first day did not have their seats declared vacant.
Multiple House members were absent last week for the swearing in ceremony in the chamber, including Del. Brandon Steele, who did not attend after 911 tapes leaked about him drunkenly handling assault rifles and allegedly terrifying his family at home.
‘This is not rocket science’
In the Supreme Court filing, the Democratic Party said that the House resolution directly conflicted with a state code stipulating that a vacancy in the House must be filled by appointment from a list of three nominees submitted by the party executive committee of the same political party with which the person holding the office was affiliated at the time the vacancy occurred.
The filing pointed to a 2016 case involving former state Sen. Daniel Hall, who was elected in 2012 as a Democrat in Wyoming County then switched to Republican while serving. Hall resigned, creating a vacancy. Following a legal challenge from Democrats, the state Supreme Court ruled in 2016 that Republicans had the right to fill the seat due to Hall’s party affiliation when he vacated his seat.
Del. Shawn Fluharty, D-Ohio, who argued against House resolution during its consideration, said the case involving Hall clarifies state code and grants the seat to the party that the outgoing lawmaker currently belongs to, not the party they entered office with.
“This is not rocket science. It’s plain state code and the Supreme Court has already ruled on this language,” said Fluharty, who holds a law degree. “The supermajority is attempting to go around it by bypassing our Constitution and attempting to set a dangerous precedent that they will be the judge and jury no matter the circumstances and they will pick and choose whom they will allow to serve while ignoring the will of the voter.”
Sen. Joey Garcia, a Democrat who served in the House, last successfully amended a Republican-sponsored measure that would have changed state code regarding Legislature appointments. The amendment required that if a lawmaker resigned after switching parties, the seat would remain with the party the individuals belonged to at the time he or she was elected. Garcia referenced the Hall case in his proposed amendment.
The Senate never took up the bill.
“Now we have a situation where the House leadership is trying to get around the law when it doesn’t benefit them,” said Garcia, D-Marion. “The fact is they didn’t change it last year, and for that reason, the court should be consistent and appoint a Democrat.” Garcia plans to introduce a similar measure this upcoming legislative session.
Berkeley County Republicans and Dems nominating potential replacements
The adopted House resolution referred the vacancy to Berkeley County Republicans to nominate individuals for the seat.
Democrats said that the referral was “blatantly unlawful.” Pushkin urged the governor to uphold the law and appoint nominees from the county’s Democratic executive committee.
“The West Virginia Democratic Party remains committed to ensuring that the will of the voters is respected and that all appointments are made in strict accordance with the law,” the state Democratic Party said in a statement.
Berkeley County Democrats have submitted three names for the seat for consideration by Morrisey, who will make the appointment.
Pam Brush, chairwoman of the Berkeley County Republican Party, said a committee plans to submit a list of nominees to Morrisey on Saturday.
The area has been represented by a Republican for 20 years, Brush noted.
“It’s a very conservative strict, for it to continue to be Republican is what it should be,” she said. “Our governor is the former attorney general, and if anyone would respect the law, he would do that.”
De Soto, who is from Gerrardstown, won a three-candidate Republican primary race last spring, winning against incumbent Don Forsht, R-Berkeley in the 91st district. There was no Democratic candidate in the November general election, but de Soto faced competition from a Constitution Party candidate.
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