In West Virginia, when a state legislator resigns, that legislator’s party may choose three possible replacements, and the Governor then chooses one of those three names. On January 22, the West Virginia Supreme Court ruled 3-1 that the Republican Party, not the Democratic Party, may submit three names to the Governor. State ex rel Biafore v Tomblin, 16-0013. This link goes to the court’s web page. There are separate links to the opinion of the court, and two concurring opinions. The dissenting justice hasn’t written a dissent yet.
The Senate vacancy was created on December 29, 2015, when State Senator Daniel Jackson Hall resigned. Hall was elected as a Democrat in November 2012 to a four-year term. In November 2015 he switched parties, from Democratic to Republican. Then he resigned. Democrats filed the lawsuit, arguing that they should be the party that gets to submit three replacement possibilities, but the Court ruled in favor of the Republicans. The law says the party that gets to choose is “the party with which the person holding the office immediately preceding the vacancy was affiliated.”
Is this appointment for the full remaining term, Richard, or will there also be a special election?
If the senator had resigned in the first part of his term, there would have been a special election in November 2014. But there won’t be a special election because he resigned too far into his 4-year term.
Thanks. (Sounds not unlike Michigan law on this, actually.)
Note: Hall switched parties in November 2014, the day after the general election that caused a 17:17 partisan split in senate control. His switch enabled the Republicans to control both chambers of the legislature in 83 years. The Supreme Court opinion misstated the date of the party switch. Were a Democrat appointed, it would make the Senate 17:17 again.
Hall was elected in 2012, so his seat is open this year. It appears to be a competitive seat, with a (R) elected in 2014, and Hall having just over 50% in 2012.
It would be interesting if there were a written dissent. The statute provides that it is the political affiliation of the legislator immediately prior to the vacancy that matters. The only contradiction is that the party committee that provides the 3 lists is based on the where the former legislature resided at the time of his election. But that could simply be to recognize the possibility of a vacancy being caused by a change of residence, or change due to redistricting.
The court’s opinion suggests that the Democrats made the argument that the legislature logically would have wanted to preserve the political will of the people.
The Democratic governor is a defendant since the suit sought to require him to appoint a Democrat. The Republic attorney general intervened on behalf of the State of West Virginia. Amicus briefs were filed by the Building and Construction Trades Council of the AFL-CIO; the state chamber of commerce; and the senate president, who was elected after Hall switched parties.
The Supreme Court is divided with 2 Republicans and 3 Democrats, but switches to nonpartisan elections beginning this year. One of the Republicans disqualified himself – his 12-year term is up this year. I don’t know if he is running for re-election.
Justice Ketchum, elected as a Democrat, suggests in his concurring opinion that this decision will cost him re-election. I don’t think that he is up for election this year.
Sue Cline has just been appointed: http://www.governor.wv.gov/media/pressreleases/2016/Pages/Governor-Tomblin-Appoints-Sue-Cline-to-Represent-9th-District-in-West-Virginia-Senate.aspx