UPDATE: Watch the recording of the oral arguments here.
As West Virginia lawmakers head to the state Capitol Wednesday morning for the first day of the Legislative Session, it’s still unclear if the GOP will maintain its majority in the Senate after Republican Sen. Daniel Hall resigned from his seat earlier this month.
Hall, elected to the Senate in 2012 as a Democrat, switched his party affiliation after the 2014 mid-term elections, giving the GOP a majority in the Senate for the first time in more than eight decades, but his resignation is now causing both parties to question who will be appointed to take his place.
The West Virginia Democratic Party is asking the state’s Supreme Court of Appeals to answer that question. Democrats say because Hall was a member of their party when elected, a member of their party should also replace him.
“We believe that what the statute is trying to do is preserve the mandate of the voters,” Anthony Majestro, a Charleston attorney representing the state Democratic Party in the case, said Tuesday.
Majestro explained the state’s election statutes are ambiguous on the issue, not clearly stating if an appointee should come from the party a politician belonged to at the time of election or at the time of resignation, because lawmakers likely didn’t contemplate affiliation changes when they wrote the law.
Still, Majestro maintained the intent of the law is to replace the politician with an appointee most like the one the voters elected, one of the same party. So, in this case, a Democrat.
Republicans, however, disagree with the stance.
“This is the last gasp effort of a party trying to hold on to the vestiges of power,” Senate Majority Leader Mitch Carmichael said of the pending litigation.
In fact, Carmichael believes it is not the Supreme Court’s place to decide who should replace Hall at all, unless, he said, Governor Tomblin attempts to seat a Democrat.
“Then we will call upon the Supreme Court to follow the law,” he said.
Response briefs were filed in the case Tuesday and both parties have asked the court to come to an expedited decision because the Legislative Session begins Wednesday.
Justice Brent Benjamin has rescued himself from the case, likely because he’s the only justice up for re-election this year.
Should the Justices side with the Democrats, though, Carmichael said there are other ways to prevent a Democrat from taking the seat.
“We judge the qualifications of the members and we do not believe that a Democrat in that seat after it's being vacated by a Republican is qualified to hold it,” he said.
It takes just a simple majority vote, according Carmichael, to determine an appointed Senator is not qualified, but Senate Minority Leader Jeff Kessler said Tuesday disqualifying an appointee just because there’s a D after his or her name is a dangerous precedent to set and also leaves an entire senatorial district with only one of its two constitutionally provided Senators.
“If he’s ordered by a court to do it, I’d be interested to see him try to disobey a court order,” Kessler added.