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Court considers arguments about how to fill vacant Senate seat

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Court considers arguments about how to fill vacant Senate seat
By Pamela Pritt, Register-Herald Reporter

CHARLESTON — Voter intent or party affiliation?

That's the heart of the question before the West Virginia Supreme Court of Appeals, placed there because of the resignation of former state Sen. Daniel Hall, who resigned earlier this month to become a lobbyist for the National Rifle Association. Hall was elected as a Democrat in 2012, but switched parties two years later, giving the Republicans their first majority in the upper chamber in more than 80 years. The 2014 General Election left the senate deadlocked at 17-17.

When Hall resigned, the West Virginia Democrat Party filed a writ of mandamus to compel Gov. Earl Ray Tomblin to appoint a Democrat, as Hall was when he was elected, but Republicans interpret the law to say that a member of the GOP should fill that seat because of Hall's party affiliation immediately before his resignation. 

Tomblin later announced his intention to appoint a Democrat unless the Supreme Court instructed him to do otherwise.

The court did not immediately render a decision.

Arguments Tuesday from the Democrat petitioners relied heavily on "the will of the voters." Peter Markham, who represented Tomblin, said Hall was affiliated with both parties, and spent most of his truncated term as a Democrat. Markham said lawmakers had not anticipated that a sitting senator would switch parties during his or her term, thus the statute spoke directly to Hall's party at the time of his election. 

Markham also pointed out that one of the names presented to Tomblin from the GOP was a person who had lost the 2012 election to Hall. "That's not fair to the voters," Markham said. 

Representing the Republican Party, Mark Adkins said the statute's language is clear, and the effect on the voters if a Republican is appointed is "minimal."

Justice Robin Davis disagreed, interrupting Adkins to say this appointment had "special importance" for Democratic voters in the 9th District. 

Adkins said voters elected a person, not a party to that Senate seat. 

"The majority of the electorate elected Sen. Hall to represent the 9th District, to make decisions and make votes on their behalf," Adkins said. He said Hall's party switch was his constitutional right, and was made because he thought it was in the best interest of his district.

Because of published reports — and an insinuation in Senate President Bill Cole's amicus brief — that the Senate leadership did not have to abide by the court's decision, Justice Allen H. Loughry II asked each Markham and Adkins if their clients would abide by the high court's decision. 

Both said they would. 

The GOP leadership said Tuesday morning after the Senate's floor session that they were prepared to seat a new senator, regardless of party affiliation. 

Sen. Mike Hall, R-Putnam went as far as to say that if the GOP leadership opposed seating a Democratic senator, he would vote against his party to tip the majority to favor the governor's appointee. 

"I would vote to seat that person because I think you're disenfranchising the district," Hall said. "We've got work to do here. We can't spend a lot of time getting all garbled up in a question about that."

Senate Majority Leader Mitch Carmichael said the GOP won't change its agenda, regardless of the appointee's party affiliation. 

"We're not going to stop our agenda just because the body changes in makeup," Carmichael said. "We're going to continue to advance those bills. If they get voted down that's just the way it will be."

SB1, which would make West Virginia a right to work state is slated for a vote on the Senate floor Thursday. Depending on how long it takes the court to render a decision, a new senator from the 9th district could be seated by then.

Carmichael said he and his fellow Republicans are "hopeful and anxious" awaiting the court's decision.