The West Virginia Democratic Party has filed a lawsuit with the state Supreme Court, arguing that a Democrat should be appointed to fill the vacancy in the state Senate created when Sen. Daniel Hall resigned this week to take a lobbying position with the National Rilfe Association.
Hall was elected to the Senate as a Democrat in 2012, but he switched parties to become a Republican just a day after the 2014 election. Hall's switch broke a 17-17 tie in the Senate, giving Republicans the majority for the first time in more than eight decades.
Since he was elected as a Democrat but resigned as a Republican, there has been confusion about which party Gov. Earl Ray Tomblin will choose to fill the seat.
Both parties have said they will submit a slate of candidates for Tomblin to choose from.
The lawsuit, which names Tomblin, a Democratic governor, and the local Republican executive committee as respondents, argues that state law is ambiguous in determining which party should fill the vacancy.
The state code, the lawsuit says, "exists to best preserve the mandate of the voters when a legislative vacancy occurs."
Since voters elected a Democrat, the lawsuit says, Tomblin should be required to appoint a Democrat.
Republicans, unsurprisingly, disagree.
"The West Virginia Democrat Party files suit against a Democrat governor and asks him to break the law; it's that simple," state Republican Party Chairman Conrad Lucas said. "A Republican must be chosen to fill this vacancy."
Republicans have until Tuesday to file an official response with the court.
State code requires the governor to choose a replacement from a list submitted by the party committee "of the party with which the person holding the office immediately preceding the vacancy was affiliated."
The lawsuit argues that code never tells the governor to determine party affiliation at any specific point in time.
Democrats say there is no precedent in West Virginia for such a situation, but that two other state Supreme Courts - Wyoming and Kansas - have found in favor of their position.
They argue that finding for the Republicans could lead to "absurd and inconsistent" consequences.
For instance, the lawsuit says, a governor could offer a legislator of the opposite party a plum job in his administration, but only if the legislator switches parties before resigning. That would then let the governor's party pick up a seat in the Legislature.
State Democratic Party Chairwoman Belinda Biafore emphasized that voters chose a Democrat, so the replacement should be a Democrat.
"When hardworking West Virginians of the 9th District voted, they voted for a Democrat," Biafore said earlier this week. "I believe, when Senator Hall changed parties for his own personal motivations, he turned his back on the voting process and the voters."
The lawsuit asks the Supreme Court to hear the case on an expedited basis and to make a decision before the Legislature gavels into session on Wednesday.
The stakes are high.
With the vacancy, the Senate stands at 17 Republicans and 16 Democrats. A Republican replacement would restore the narrow majority that the party had last session after Hall's switch.
But a Democratic replacement would create a 17-17 tie, throwing the Senate into turmoil, with no obvious way forward and both parties attempting to cajole an opposing senator into switching to their side.
Republicans have made clear that they intend to move contentious bills - like a "right to work" bill and a repeal of the state's prevailing wage law - early in the legislative session.
A tie in the Senate would stymie those plans, as a tie vote on legislation would result in that bill not moving forward.
Attorney General Patrick Morrisey, a Republican, said earlier this week in an advisory opinion, that the seat should be filled by a Republican.
Judicial elections in West Virginia are now nonpartisan, but the Supreme Court is comprised of three Democrats and two Republicans.
Reach David Gutman at david.gutman@wvgazettemail.com, 304-348-5119 or follow @davidlgutman on Twitter.