Daniel Hall, the Democrat-turned-Republican senator who resigned last week, must be replaced by a Republican, a local Republican Party executive committee argued in a brief to the West Virginia Supreme Court Tuesday.
The brief, filed on behalf of the Republican executive committee for Hall's 9th Senatorial District, is a response to a lawsuit filed last week by the state Democratic Party, calling for Hall to be replaced by a Democrat.
The Republicans asked the Supreme Court to hear oral arguments in the case. Republican Attorney General Patrick Morrisey, who also asked the court Tuesday to require a Republican replacement, wrote that oral arguments are unnecessary but asked to be involved if they are heard.
Democratic Gov. Earl Ray Tomblin, who ultimately will appoint the replacement, said Monday that he would let the court decide, but if it does not give him specific instructions or does not decide in time, he will appoint a Democrat.
While it might seem like a typical partisan squabble, the fight looms over the 2016 legislative session, set to begin today. A Democratic replacement would take away Republicans' slim majority in the Senate, endangering the more contentious pieces of their agenda - right-to-work, charter schools and prevailing-wage repeal.
Senate President Bill Cole, R-Mercer and a candidate for governor, also filed a brief with the court Tuesday urging a Republican replacement.
The West Virginia Chamber of Commerce, a major Republican donor in 2014 through its political action committee, also asked the court for a Republican replacement.
While judicial elections in West Virginia are now, for the first time, nonpartisan, the Supreme Court is composed of three Democrats and two Republicans. On Tuesday, Justice Brent Benjamin, a Republican up for re-election this year, voluntarily recused himself from the case.
Benjamin cited no specific reason for his recusal but, in the past, justices up for re-election have recused themselves from election-related cases.
The decision whether or not to appoint a replacement for Benjamin lies with Chief Justice Menis Ketchum, a Democrat. Ketchum also will choose who the replacement will be, if he decides a replacement justice is necessary.
Hall was elected in 2012 as a Democrat. He switched parties a day after the 2014 elections, breaking a deadlock and giving the Republicans their Senate majority. He resigned last week to become a National Rifle Association lobbyist.
The argument over who replaces Hall essentially boils down to one line in state code. The line, from section 3-10-5(a), says the governor shall choose a 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."
Does the "immediately" in that sentence refer to Hall himself or to his party affiliation?
For Republicans (including Morrisey and Cole, whose arguments are largely similar), the reading is straightforward. They see that "immediately" and read it as requiring the governor to appoint a replacement from the party with which Hall was affiliated immediately preceding his resignation. He was a Republican when he quit, ergo, the replacement must be a Republican.
"The use of 'immediately preceding' is clear and unambiguous," Republicans wrote in their brief.
For Democrats, the reading could go either way.
The "immediately," the Democrats say, refers to Hall. It does not refer to his party affiliation. Since he was affiliated with both parties at various points, the meaning is ambiguous and the governor should appoint a replacement which best represents the will of the voters.
That, they say, is a Democrat, because Hall was elected as a Democrat.
Democrats point to similar instances in Wyoming and Kansas, when courts in those states found in favor of their argument.
"We cannot find a single state that has the rule that Republicans think our Legislature adopted," Democratic counsel Anthony Majestro said.
Republicans say that not only are other states not relevant, but those two instances aren't similar. Neither of those states had any reference to a time period in its code, Republicans say, whereas West Virginia has the "immediately preceding" phrase.
Cole, in his brief, also referred to the state Constitution, citing a section that reads the Legislature shall be the judge of the "qualifications of its members."
"The Senate is empowered to determine the qualifications of its members," Cole's chief counsel wrote. Siding with the Democrats "will undermine important separation of powers principles."
Republicans also argue, in their brief, that even if the language is ambiguous, voters elected Hall, they did not elect his party. Hall changed parties, they said, to better represent his district, and that switch should be respected.
"The people entrust their representative to act on behalf of their best interests," the Republicans wrote. "Officeholders should feel free to change their political affiliation, if they believe the change serves the best interest of their constituents."
On Tuesday, Tomblin filled another legislative vacancy. The governor appointed Wyoming County Schools Superintendent Frank Blackwell to represent the 25th Delegate District. Blackwell replaces Linda Goode Phillips, who resigned last month. Both are Democrats.
Reach David Gutman at david.gutman@wvgazettemail.com, 304-348-5119 or follow @davidlgutman on Twitter.