Article III, Section II of the West Virginia Constitution states: “All power is vested in, and consequently derived from, the people.” Powerful words.
Article II of the West Virginia Constitution similarly asserts: “The powers of government reside in all the citizens of the state, and can be rightfully exercised only in accordance with their will and appointment.” Formidable words.
These statements serve as both warnings and guardrails, ensuring lawmakers do not overstep the bounds set by the people.
Yet, on Saturday, the Legislature seemingly disregarded these constitutional provisions by passing House Bill 2755.
The passage of HB 2755 revisits an old debate: Who holds ultimate authority over education policy in West Virginia?
Some history…
This issue is not novel; it was settled in 1988 by the West Virginia Supreme Court in the landmark case, WV Board of Education v. Hechler. The Court ruled decisively in favor of the Board of Education, issuing a writ of mandamus compelling then-Secretary of State Ken Hechler to register educational rules approved by the Board without legislative oversight.
Fast forward to 2022, when the Legislature sought to render this precedent moot by asking voters to amend the state constitution through Amendment 4. However, voters clearly rejected the amendment, with 58 percent voting “no” and only 42 percent in support.
One would assume that this decisive public outcome would end the debate, yet HB 2755, mandating legislative approval for all rules set by the WV Board of Education, suggests otherwise.
Setting policy arguments aside, let’s examine the constitutional implications:
Both the U.S. and West Virginia constitutions establish our government as a constitutional republic, grounded firmly in the principle of popular sovereignty—the idea that governmental authority originates from the people. West Virginia’s Constitution echoes this foundational principle explicitly.
Various justifications for HB 2755 have emerged, ranging from claims that the Court decision was incorrect, voters were confused by multiple ballot amendments, or that former Governor Justice’s opposition to Amendment 2 tainted the other amendments. Some suggest voters rejected Amendment 4 not on its substance but due to reluctance to amend the constitution.
These arguments are irrelevant and open the issue to interpretation. Voters said “no,” they need say nothing more.
So, what happens next?
Many observers speculate that proponents of HB 2755 fully expect a constitutional challenge, intending to revisit the issue before a potentially friendlier Court than the one from 1988. While litigation is an option, Senator Amy Grady of Mason County proposed a more appropriate course during legislative debate: reintroducing the issue clearly and independently on the ballot, coupled with substantial voter education about the policy merits. This sensible approach respects popular sovereignty, aligning with both state and federal constitutional principles.
Governor Morrisey now faces an important decision. By vetoing HB 2755, he can affirm the Legislature’s commitment and his own to exercising power consistent with the people’s expressed will. Whether he will do so remains unknown.
Should he not veto and the matter proceeds to court, the West Virginia Supreme Court likewise holds the power to reinforce popular sovereignty by refusing to hear any such case on the grounds that voters have already spoken on the issue. That too is unknown and will be unless the matter is pursued.
As has been noted in previous commentaries: Vox Populi – Vox Dei (The Voice of the People is the Voice of God).