West Virginia’s Democratic Party wants the state Supreme Court to weigh in over a House of Delegates move to vacate a seat won by a Berkeley County man who is now confined at his home on charges that he threatened people who would have been his legislative colleagues.

The filing by Democrats contends the House of Delegates acted inconsistently by vacating the seat won by Joseph de Soto since he was among seven elected delegates who were not present to take the oath of office on an organizational day last week — but he was the only one knocked out in perpetuity.

De Soto was elected as a Republican but changed his political affiliation to Democrat the day before he was arrested. Democrats say West Virginia precedent means a Democrat should be named to fill the seat.

“This is not just about one seat,” said Mike Pushkin, chairman of the West Virginia Democratic Party. “This is about defending the rule of law and ensuring that the people of District 91 have their rightful representation in the House of Delegates. The actions taken by the House of Delegates undermine the integrity of our democratic process.”

The writ of mandamus filed with the West Virginia Supreme Court names House Speaker Roger Hanshaw, R-Clay, and Gov. Patrick Morrisey, each in their official capacity.

Debate broke out on the House floor a week ago, Jan. 8, over whether the proper, constitutional procedure was being followed as the seat won by de Soto was vacated.

De Soto was arrested in December and charged with making threats of terrorist acts, referring to statements he is accused of making to several delegates. He is listed as a pre-trial felon.

Because de Soto was not present with most other delegates to take the oath of office last week, he was not seated.

Members of the House of Delegates then went a step farther by introducing a resolution to declare the seat vacant. Conceivably, that would allow a new representative to be selected prior to the start of the 60-day regular session on Feb. 12.

The vacancy was declared on the grounds of Article XI, Section 16 of the West Virginia Constitution. A key portion of that section says: “Any member who shall refuse to take the oath herein prescribed, shall forfeit his seat.”

Debate among some delegates then focused on whether de Soto’s failure to take the oath of office because of the arrest and home confinement constitutes refusal to do so.

That’s a point that the Democratic Party has asked the state Supreme Court to resolve.

A question being directed to the justices is “Whether the House of Delegates can declare vacant the seat of a duly elected,
qualified, and ready-to-serve delegate for reasons related to misconduct.”

Another question has focused on the party of the delegate to be appointed to replace de Soto. The final line of the resolution designates the Republican Executive Committee of Berkeley County to begin action on the vacancy.

The rational of the Republican supermajority in the House is that because de Soto was never officially seated, the fact that he had registered as a Democrat weeks prior to this would have no bearing on the situation.

The Democrats are seeking clarity from the Supreme Court.

They are asking justices if a person holding the office immediately preceding a declared vacancy in a House of Delegate seat would include a person who was duly elected, assumed office on Dec. 1 following the election, as provided in West Virginia state code, but who had not yet taken the oath of office.

The Berkeley County Democratic Executive Committee says it has gone ahead and submitted this list of qualified nominees for Governor Morrisey’s consideration:

1. David Michaels – Hedgesville, WV
2. Stephen Willingham – Hedgesville, WV
3. Timothy Lee – Inwood, WV

“It’s imperative that the law and the constitution be followed in this matter,” said Tammy Offutt, chair of the Berkeley County Democratic Executive Committee.

“We expect the Governor to respect the clear requirements of West Virginia law by appointing one of the three above-named individuals to fill the 91st Delegate District seat.”

State Republican Party Chairman Matthew Herridge responded by saying, “The West Virginia Republican Party is concluding its legislative vacancy nomination process for the 91st District this week, and that will be submitted to Governor Morrisey for his appointment.”