West Virginia Democratic Party files new lawsuit over 91st House District seat

(Court Reports - Photo Illustration/MetroCreativeConnection)
CHARLESTON — The West Virginia Democratic Party is hoping the filing of a second lawsuit over the issue of what political party gets to choose the replacement for Joseph de Soto in the 91st District House of Delegates seat will get around a stay of their first lawsuit. The party filed a new writ for mandamus Monday evening with the West Virginia Supreme Court, requesting the high court order Gov. Patrick Morrisey to rescind his appointment of Republican Ian Masters to the 91st District vacancy and choose from a list of three Democrats submitted by the Berkeley County Democratic Executive Committee. The lawsuit was filed by Delegate Mike Pushkin, D-Kanawha, who chairs the state Democratic Party, along with Jill Michaels, a resident of the 91st District in Berkeley County. Morgantown attorney Robert Bastress Jr. is representing them. The lawsuit is seeking to ask the following two questions: whether the House of Delegates can declare a seat vacant when someone has been duly elected to the seat but hasn’t taken the oath of office; and whether de Soto, who won the election November as a Republican, but switched to a Democrat in December, was considered a member, meaning that any appointed replacement would need to be a Democrat. The House adopted House Resolution 4 during its Jan. 8 organizational session declaring the 91st House seat forfeited after de Soto was unable to take his oath of office in the House chambers as required by the state Constitution for his two-year term. DeSoto was on home confinement. De Soto was charged on Dec. 12 with making terroristic threats against fellow Republican House members. Two Republican House members also have orders of protection against de Soto that bar him from the Capitol until 10 days following the end of the 2025 legislative session on April 12. De Soto was arrested by the West Virginia State Police following an investigation into threats made by de Soto to another person regarding several lawmakers following a closed-door meeting of the House Republican caucus on Dec. 8 after his Republican colleagues voted to move forward with his expulsion over alleged falsehoods spread by de Soto about his military record. De Soto switched to the Democratic Party on Dec. 11. HR 4 states that due to the seat being forfeited by de Soto, the seat remains a Republican seat despite de Soto’s party switch and the vacancy must be filled by Morrisey appointing a Republican. State code requires legislative vacancies to be filled by the governor from a list of three qualified individuals submitted by a political party executive committee of the same party of the office holder within 15 days of the vacancy. But the Democratic Party argues that there is no evidence that de Soto has refused to take the oath of office, one of two charges listed in the state Constitution that can be used to declare a seat forfeited. Instead, the proper method of removing de Soto was expulsion, not forfeiture, which requires a two-thirds vote of the House. The Constitution also states that new legislative term begins in Dec. 1. The Secretary of State’s Office declared on Dec. 19 that all 55 counties had certified the 2024 general election. Because of these two facts, the Democratic Party argued that de Soto was not a delegate-elect, but a certified member who had merely not taken the oath yet. Having switched parties, the Democratic Party further argued that the 91st District seat is now a Democratic seat. “Delegate Joseph A. DeSoto began his term of office as delegate from the 91st Delegate District on December 1, 2024,” Bastress wrote. “At the time the seat was declared vacant on January 8, 2025, and ‘immediately preceding’ that date, DeSoto was the delegate in office and was a registered Democrat…Therefore…(Morrisey) has a mandatory duty upon a vacancy occurring in the 91st Delegate District to fill that office from the list of nominees presented to him by the Berkeley County Democratic Executive Committee.” The new lawsuit only names Morrisey. The first lawsuit named Morrisey and House Speaker Roger Hanshaw, R-Clay. But an attorney for Hanshaw filed a notice of automatic stay, which delays lawsuits against lawmakers and legislative officials during a regular or special session. While the Legislature is on a break until starting the 60-day regular session on Feb. 12, the Jan. 8 organizational session was not adjourned. The original case is stayed until after May 12, 30 days after adjournment of the 2025 legislative session on April 12.