House Vacates De Soto’s Seat Following Alleged Death Threats

The West Virginia House of Delegates voted to vacate a newly elected lawmaker’s seat Wednesday after he was charged with allegedly threatening to kill several state legislators.

Joseph De Soto was elected to represent Berkeley County in November as a delegate for the 91st House district. 

But West Virginia State Police arrested De Soto on Dec. 12, under a felony charge of making “threats of terroristic acts” against multiple lawmakers over text and email. De Soto is currently under home incarceration.

When De Soto was absent from the House chamber on Wednesday, the opening day of the new legislative session, he was not sworn into office.

Now, the future of his seat is uncertain. A House resolution vacating De Soto’s position cites his felony charge in its reasoning, and mandates that his seat be filled by a Republican. But some Democratic officials are considering a legal challenge for the seat.

Ousted before taking office

According to a criminal complaint filed in the Berkeley County Magistrate Court, De Soto’s alleged threats followed a conflict at a House Republican caucus earlier in December.

Some state lawmakers reportedly discussed ousting De Soto from the legislature over fraudulent claims about his professional and military service background, which were first reported by DragLine in July.

This made De Soto feel “he is being attacked and forced out of his position” as a state lawmaker, according to the complaint.

The day before his arrest, De Soto changed his political affiliation from Republican to Democratic. If De Soto took office and was then removed, state law would require that his successor hold his political affiliation upon removal. In other words, a Democrat would have to take his seat.

The policy was adopted by a Republican legislative majority in 2018. Previously, the party at the time of a representative’s election filled vacancies.

Alternatively, if De Soto was barred from office before being sworn in, current state law would allow the governor to name a replacement delegate from any political party, the West Virginia Secretary of State’s office told West Virginia Public Broadcasting last month.

“This is a novel situation in recent West Virginia history,” said Donald Kearsey, chief of staff to West Virginia Secretary of State Mac Warner, in a Dec. 17 statement shared with WVPB. “Current laws and our court cases do not provide clarity, so the resolution will have to be informed by additional facts that have not come to light yet.”

Sitting lawmakers opted for the latter, and voted to vacate De Soto’s seat. Several legislators pointed to De Soto’s failure to take an oath of office in statements on the House floor, but some Democratic lawmakers expressed concern over the vacancy proceedings.

Entering new legal waters

On behalf of the secretary of state’s office, Kersey said in an email to WVPB Thursday that the office is “not privy to the House’s legal research or analysis,” and that House decision-making would take precedence.

But Del. Shawn Fluharty, D-Ohio, said Wednesday that the newly elected delegate’s absence was not constitutionally sufficient to vacate his seat.

Article VI of the West Virginia Constitution states that delegates who “refuse to take” or are “convicted of having violated” their oath of office forfeit their right to hold state office. But the article does not indicate that a delegate being unable to take their oath is grounds for vacating their seat.

De Soto was among eight House members absent for the swearing in of the 87th legislature Wednesday. One, Del. Bill Flanagan, R-Ohio, entered the chamber midway through the assembly and took the oath individually. The other six seats are open until delegates assume office.

Fluharty argued on the House floor that De Soto should have been sworn in and then removed from office under state law. This course of action would have required his successor to be a Democrat.

“I want to make sure we do this correctly and that we correctly remove him properly under the Constitution,” Fluharty said.

Del. Mike Pushkin, chair of the West Virginia Democratic Party, introduced an amendment to allow the Berkeley County Democratic Executive Committee, rather than its Republican counterpart, to appoint De Soto’s replacement. His amendment failed.

Meanwhile, House Republicans said De Soto’s current legal troubles warrant swift intervention. 

“We have evidence that he cannot take the oath because he cannot be here for what seems to be a very prolonged period of time,” House Majority Leader Pat McGeehan, R-Hancock, said.

Ann Ali, deputy chief of staff and communications director for the House, said the House’s position is that De Soto never was formally sworn in, so he “could not be removed from a seat he never occupied.”

Defense counsel for De Soto did not respond to email or phone call requests for comment on this story Thursday. De Soto also did not respond to an email request for comment.

Pushkin responded to WVPB requests for comment on the Berkeley County Democratic Party’s behalf. He said the party would continue to consider legal challenges to the vacancy proceedings in the future.

In the meantime, local Democratic officials in Berkeley County are actively considering possible Democratic successors for De Soto’s seat, in opposition to the House resolution’s mandate that the seat be filled by a Republican.

The Berkeley County Democratic Executive Commtitee announced they are taking applications from county residents to fill the vacancy in a Jan. 8 Facebook post. No Democratic nominee was on the November ballot for De Soto’s House seat.

“We are committed to ensuring that the 91st House district has strong and effective representation,” said Tammy Offutt, executive committee chair, in the post. “The candidates we are putting forth should be well-prepared to serve and meet the needs of our community.”

View the Berkeley County Democratic Party’s Facebook post:

The Berkeley County Democratic Party is seeking applicants for a seat in the West Virginia House of Delegates won by Republican-turned-Democrat Joseph De Soto in November’s general election.