The West Virginia Democratic Party has asked the state Supreme Court to decide whether House supermajority Republicans followed state law and the state constitution in filling a seat vacated by Joseph de Soto.
De Soto, who was elected as a Republican to represent a district in the Eastern Panhandle, recently changed his registration to Democrat be arrested for allegedly threatening to harm or kill Republican lawmakers. He will be listed as a criminal in court.
Democrats, who currently have a nine-member House caucus, believe they have the legal authority to fill the vacated seat. The State party submitted a petition with the West Virginia Supreme Court of Appeals on Wednesday; House Speaker Roger Hanshaw and Gov. Patrick Morrisey are listed as respondents.
“This isn’t just about one seat,” said Mike Pushkin, chairman of the state Democratic Party, who is also a delegate. “This is about defending the rule of law and ensuring that the people of District 91 receive their rightful representation in the House of Representatives. The House’s actions undermine the integrity of our democratic process.”
The House of Representatives passed a resolution Jan. 8 Vacation from de Soto’s seat. The resolution states that de Soto’s status of house arrest and at least two protective orders issued by lawmakers barring him from entering the Capitol would make it impossible for him to take the oath of office at the Capitol required to provide.
“…The House of Delegates has determined that Delegate-elect Joseph DeSoto is ineligible to serve as a member of the West Virginia House of Delegates because he has not taken the oath of office,” the resolution states.
In the Supreme Court filing Wednesday, Democrats argued that the seats of elected delegates from previous sessions who were unable to take the oath of office on the first day of the session were not declared vacant.
Several members of the House of Representatives were not present at the swearing-in ceremony in the chamber last week, including Del. Brandon Steele, who was not present after 911 tapes were leaked him He drunkenly handled assault rifles and allegedly frightened his family at home.
“It’s not rocket science.”
In the Supreme Court filing, the Democratic Party stated that the House resolution was in direct contradiction to a Country code It stipulates that a vacancy in the House of Representatives must be filled by an appointment from a list of three candidates submitted by the executive committee of the same political party to which the person holding the office belonged at the time the vacancy was filled.
The filing pointed to a 2016 case involving former state Sen. Daniel Hall, who was elected as a Democrat in Wyoming County in 2012 and then switched to Republicans while in office. Hall resigned, creating a vacancy. Below a legal challenge from the Democrats, the state Supreme Court governed in 2016 that Republicans had the right to fill the seat when he vacated his seat because of Hall’s party affiliation.
Del. Rep. Shawn Fluharty, D-Ohio, who spoke against the House resolution during the review, said the case involving Hall clarifies state law and gives the seat to the party the outgoing lawmaker currently belongs to, rather than the party he is with took office.
“It’s not rocket science. It’s a simple state law and the Supreme Court has already ruled on that language,” said Fluharty, who has a law degree. “The supermajority is trying to get around this by circumventing our Constitution and trying to set a perilous precedent that they will be judge and jury regardless of the circumstances and choose who they want to serve while ignoring the will of the state “Voters.”
Sen. Joey Garcia, a Democrat who served in the House, successfully amended a Republican-backed proposal last year measure that would have changed state law regarding appointments in the Legislature. The change provided that if a lawmaker resigns after switching parties, the seat will remain with the party the person belonged to at the time of their election. Garcia referred to the Hall case in his proposed amendment.
The Senate never took up the bill.
“Now we have a situation where House leadership is trying to circumvent 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 in the coming legislative session.
Berkeley County Republicans and Democrats nominate potential successors
The adopted House resolution referred the vacancy to the Berkeley County Republicans to nominate individuals for the seat.
Democrats said the transfer was “patently unlawful.” Pushkin called on the governor to comply with the law and appoint candidates from the county 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 present 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 district because it should continue to be Republican,” she said. “Our governor is the former attorney general, and if someone would respect the law, he would.”
De Soto, a Gerrardstown native, won a three-candidate Republican primary race last spring, defeating 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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