The fight over whether to appoint a Republican or a Democrat to the 91st District House of Delegates seat is a fascinating one for me, a former legislative staffer who nerds out over these kinds of questions.

I’ve had a story in the papers nearly every other day regarding the writ of mandamus lawsuit filed by the West Virginia Democratic Party, so I won’t go into the minute details. But here is a summary:

Voters in the 91st District in Berkeley County vote for Republican Joseph de Soto in the May over Tammy Hess and former delegate Don Forsht. De Soto won the November general election over a Constitution Party candidate. Despite being well known as an eccentric and embellisher, voters in the conservative 91st Fistrict said sure, what do we have to lose?

Kyle Vass, an independent investigative reporter who works for the ACLU-WV, did a thorough review of de Soto’s resume, discovering holes big enough to drive a tank through. What stuck out to some was de Soto’s claims if being a combat medic and U.S. Army Ranger when according to records, de Soto was barely in the Army for one year. At one point, he even told The Journal he was in the CIA.

Exaggerating one’s military service often falls under the category “stolen valor,” and for military veterans and Republicans who tend to be pro-military, it’s a line one does not cross. So, during a House Republican caucus meeting in December, de Soto was grilled for two hours about his resume. Finding his answers lacking, the caucus held a vote to expel de Soto as a member of the House of Delegates at their Jan. 8 organizational session when members are sworn in and choose their House leadership.

This did not make de Soto happy, as one can expect. So, he changed his voter registration to Democrat. Then he sent emails to a friend threatening to kill several Republican House members. He was arrested by the West Virginia State Police and charged with making terroristic threats.

De Soto is now on home confinement, which prevented him from attending the Jan. 8 organizational session and taking the oath of office in the House chamber as required by the state Constitution. Two delegates have protective orders against de Soto that bar him from the State Capitol Building until 10 days following the end of the 60-day regular legislative session. In short, de Soto cannot represent the 91st District during the first legislative session in 2025.

On Jan. 8, the House adopted a resolution declaring the 91st District seat forfeited by de Soto, stating that the seat remains a Republican seat as a result. This led to a back-and-forth in the House between House Majority Leader Pat McGeehan, R-Hancock, and House Minority Whip Shawn Fluharty, D-Ohio.

Naturally, House Democrats believe a Democrat should be appointed to the 91st District seat since de Soto switched to a registered Democrat. The number of House Democrats dropped after the November election from 11 to nine. You can’t blame them for wanting their number of seats to go up to 10.

Fluharty argued that since the terms of elected lawmakers begin on Dec. 1 and with the Secretary of State certifying the election later in December, then de Soto is a member, not a member-elect. He simply can’t do his duties because he could not take the oath “in the hall of the house” as required by the state Constitution, but de Soto did not voluntarily forfeit his seat because there is no record of de Soto refusing the oath – one of two things that can cause a seat to be forfeited.

It’s not that the House Democrats believe de Soto shouldn’t be expelled. And it’s certainly not because they want de Soto in their caucus. But they see the forfeiture resolution as a way for House Republicans to keep the seat in GOP control and that the law requires any appointment to fill the vacancy by Gov. Patrick Morrisey come from a list of three names submitted by the Berkeley County Democratic Executive Committee.

Morrisey obviously agrees with the House Republican supermajority that the seat belongs to the GOP, appointing Berkeley County attorney Ian Masters to fill the vacancy Thursday. The West Virginia Democratic Party filed a writ of mandamus with the state Supreme Court of Appeals nearly two weeks ago (and amended last week) requesting the justices to order Morrisey to appoint a Democrat to the seat.

A response by the Governor’s Office to the lawsuit is due today, with a written decision likely to come quickly in order to settle the matter before the start of the legislative session on Wednesday, Feb. 12.

I suspect the Supreme Court, made up mostly of conservative justices (two of which are former members of the Legislature) will likely rule against the state Democratic Party. In some ways it’s a separation of powers issue, so I can see them deferring to the House’s judgement regarding the seat remaining in GOP hands. While there are some past cases that touch on some issues here, this is a pretty unique case.

However the Supreme Court rules, it is probably past time for the Legislature to adopt a resolution for an amendment for the state Constitution to go before voters to clarify these issues involving forfeiture of a legislative seat and setting a hard date for when lawmakers should be sworn in and take office.