Supreme Court takes on Senate vacancy dispute

The main attraction at the State Capitol Tuesday was not in the House or Senate or in the Governor’s office, but rather it was the stately columned courtroom of the West Virginia Supreme Court where the attention was focused.

The justices heard arguments on the critical question of whether the vacancy in the 9th Senatorial District (Raleigh, Wyoming and part of McDowell)* should be filled by a Democrat or Republican. One might think that’s a simple matter—vacancies during terms happen all the time—but it’s not.

The man who left the seat before the start of this session, Daniel Hall, was elected as a Democrat in 2012, but switched parties in 2014. That move gave the Republicans an 18-16 advantage in the Senate. Republicans gained the House in 2014, so Hall’s flip provided the GOP with majorities in both chambers.

That’s something Republicans desperately want to maintain and Democrats want to dislodge.

State law on legislative vacancies is, depending on one’s interpretation, explicitly clear, relatively ambiguous or even unconstitutional. And that brings us back to the state Supreme Court.

Four justices (Justice Benjamin, who is up for re-election, recused himself and no replacement was named) listened to nearly an hour of arguments from both sides yesterday. It was not exactly along the lines of what the definition of “is” is, but at times it did get down in the weeds on the meaning of particular words and phrases.

The statute in question, 3-10-5, says the Governor shall choose the replacement from a list submitted by “the party executive committee of the party with which the person holding the office immediately preceding the vacancy was affiliated.” GOP attorneys told the justices that’s about as clear as it gets.

However, attorneys for the Democrat Party and Governor Tomblin argued that phrase means the party with which the person was affiliated at the time of his or her election because that would be a more accurate reflection of the will of the voters.

Given the ambiguity, they say, the court should default to the last time the people voted for that seat, and it was for a Democrat.

Meanwhile, Justice Robin Davis appeared perturbed during arguments yesterday that none of the attorneys, especially those representing the Democratic side, seriously questioned the Constitutionality of the statute. “You guys avoided it like the plague,” she said at one point.

Justice Allen Loughry tried, with only limited success, to get all parties to agree that whatever the court ruled would be the final say. He apparently wants to avoid a protracted legal fight over the seat, as well as the possibility that the majority Republicans would refuse to seat a Democrat appointee.

It would be a mistake to dismiss this as just political bickering. There’s a lot at stake here for both parties, especially as lawmakers start moving contentious bills like right-to-work and a total repeal of prevailing wage.

The fate of those and other bills, as well as the division of power in the state Senate, depends on what the court does.

*(Correction: An earlier version of the commentary said Fayette County was in the 9th District. That is incorrect.  It should have included Wyoming County, not Fayette.)





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