Democrats File Supreme Court Petition Over De Soto’s House Seat

The West Virginia Democratic Party has asked the state’s supreme court to nullify last week’s resolution vacating Joseph de Soto’s seat in the 91st House district. If successful, the ousted lawmaker’s replacement would be nominated by the Democratic Party. 

De Soto won the race to represent Berkeley County as a Republican in the West Virginia House of Delegates during November’s general election. But after a conflict during a House Republican caucus in December, de Soto allegedly made threats against other lawmakers via text and email, according to a Berkeley County Magistrate Court criminal complaint.

West Virginia State Police arrested de Soto with a felony charge of making “terroristic threats” Dec. 12. The would-be delegate was under home incarceration during opening day of this year’s legislative session, and was never sworn in. However, just before his arrest, de Soto switched political affiliations and registered as a Democrat.

On Jan. 8, the House passed a Republican-led resolution vacating the Berkeley County seat, citing de Soto’s failure to take his oath of office and ongoing criminal proceedings in their decision.

On Tuesday, the West Virginia Democratic Party and its chair, Del. Mike Pushkin, D-Kanawha, filed a petition over the proceedings in the Supreme Court of Appeals of West Virginia.

In it, they argue that the West Virginia State Code sets Dec. 1 as the start date for new lawmakers, “requiring the respondents to seat Joseph A. DeSoto as the delegate” for the Berkeley County district.

“All we are asking for here is that the legislature simply follows its own laws,” Pushkin told West Virginia Public Broadcasting on Wednesday.

The petition names House Speaker Roger Hanshaw, R-Clay, and Gov. Patrick Morrisey as respondents. Neither Hanshaw nor Morrisey responded to requests for comment on this story.

Since de Soto’s arrest, legislators on both sides of the aisle have been engaged in a back-and-forth over what party a new Berkeley County delegate would come from under state law.

The state’s supreme court has not scheduled any briefs or oral arguments for the case. Jared Hunt, the court’s communications director, said in a Jan. 15 email that forthcoming court filings “will speak for themselves.”

In the meantime, Berkeley County Democratic and Republican leadership have sought out potential successors for the House seat.

Under state law, the relevant party’s executive committee must put forth three party members from a House district to fill its vacant seat. The governor then selects one of the three nominees to take office.

Under a 2018 state policy passed by a Republican legislative majority, lawmakers removed from office must be succeeded by someone from their party upon removal. If de Soto was sworn in, the policy would have required his successor to be a Democrat.

However, House Republicans moved to vacate de Soto’s seat before he was sworn in. Since he never formally held office, they argued the 2018 policy does not apply, and that the governor can appoint a resident from any party to the Berkeley County seat. In their resolution vacating the seat, lawmakers ordered that this person come from the Republican Party.

Dan Forsht held the Berkeley County seat as a Republican from 2021 to 2024, but was defeated by de Soto in last year’s primary election. Forsht told WVPB that he has applied to fill de Soto’s seat.

“Myself and others put in an application that was routed through the state GOP office down in Charleston,” Forsht said.

Tony Hodge, secretary of the West Virginia Republican Party, said the organization is reviewing applicants for the seat and planned to submit a list of nominees to the governor.

Meanwhile, House Democrats say forbidding de Soto from taking his seat violates state law, and that he should have been sworn in, then expelled. Expulsion would require his successor to come from the Democratic Party.

In the petition, Pushkin and the Democratic Party asked the supreme court to require the governor to consider nominees from the local Democratic Party in the event of a vacancy.

Pushkin said the Berkeley County Democratic Executive Committee has submitted a list of three names to the governor for the position, outlined in a Jan. 15 press release.

In the press release, Chair Tammy Offutt said naming a successor from the Democratic executive committee’s list would follow “the clear requirements of West Virginia law.”

“Any of those three candidates that have been submitted to the governor would be head and shoulders above the representatives that district has had in the past 10 years,” Pushkin told WVPB.

No Democrat ran for Berkeley County’s House seat during the November general election.

De Soto and his legal counsel did not respond to written or phone requests for comment regarding the petition, and whether they would challenge the decision to vacate his seat in court.

De Soto remains under home incarceration at his Berkeley County residence, and was ordered to stay away from lawmakers named in the criminal complaint by a magistrate court judge. He is next scheduled to appear before the court on March 19, according to the court website.