West Virginia’s attorney general says the Supreme Court should reject state Democrats’ legal challenge over a House of Delegates seat. 

Gov. Patrick Morrisey has already appointed a Republican to fill the seat of Joseph de Soto, who was elected in November as Republican but registered as a Democrat shortly before he was arrested for allegedly threatening to kill House Speaker Speaker Roger Hanshaw and several other delegates. 

The state Democratic Party argued that House Republicans, who voted to vacate de Soto’s seat, didn’t follow the proper Constitutional procedure and that there was legal precedent that the seat should go to Democrats due to de Soto’s party switch. They asked the Supreme Court to weigh in on the issue, naming Morrisey in the filing. 

In a new filing, State Attorney General JB McCuskey said the House of Delegates has the Constitutional authority to determine the qualifications of its members. House Republicans said de Soto wouldn’t be able to be sworn in due to his status on home confinement, prompting them to vacate his seat.

“Because the State Constitution vests the House with exclusive authority to judge its members’ qualifications, this Court has no authority to second-guess the House’s judgment that Mr. de Soto isn’t qualified to serve,” said McCusky, who submitted the filing on behalf of Morrisey. “Even if the Court had that authority, the House got it right when it found Delegate-Elect de Soto forfeited his seat.”

McCuskey, a Republican, also said that the state Democratic Party had no standing to sue Morrisey “because he didn’t cause their alleged harm, can’t fix their alleged harm, and has no duty to do what petitioners want.”

In response to the latest filing, state Democratic Party Chair Mike Pushkin, who is also a House of Delegates member, said the facts in the case support their side. 

“Morrisey doesn’t argue the merits of the law in his response because he knows the law is on our side,” Pushkin said. “The facts are simple, Republicans followed the law in the past when it benefited them but now, when it doesn’t, they simply choose to ignore it.  That is an insult to the rule of law and the constitution.”

The House resolution vacating de Soto’s seat ordered the Republican Executive Committee of Berkeley County to provide a shortlist of candidates to Morrisey for appointment to the seat.

The Republican governor appointed Ian Masters, an attorney and gun rights activist, to fill the seat for the 81st district, which represents a part of Berkeley County. The Regular 60-Day Session begins Feb. 12.

De Soto, who is from Gerrardstown, won a three-candidate Republican primary race last spring, winning against incumbent Don Forsht, R-Berkeley in the 91st district. There was no Democratic candidate in the November general election, but he faced competition from a Constitution Party candidate. 

There are nine Democrats in the 100-member House after November election results.