Tomblin would appoint Democrat to vacant seat, but wants court input
By David Gutman, The Charleston Gazette-Mail
Unless the West Virginia Supreme Court tells him not to, Gov. Earl Ray Tomblin intends to appoint a Democrat to the state Senate seat that has been vacant since Republican Sen. Daniel Hall resigned, a move that would swing the chamber from GOP control to a deadlock.
However, Tomblin wants the Supreme Court to resolve the controversy before he would be forced to make a decision. Tomblin must choose a replacement within five days of when he receives a list of nominees from the local party executive committee.
The governor had been largely quiet on the controversy, triggered when Hall, who was elected as a Democrat and then switched parties, resigned to take a lobbying position with the National Rifle Association.
The governor’s stance, made public Monday, comes in a brief filed with the Supreme Court by his general counsel, Peter Markham.
Under state law, the governor must fill vacancies in the Legislature with a member of the same party, but Hall’s party switch has created confusion about which party that should be.
“Does Governor Tomblin,” Markham wrote, “honor Hall’s party affiliation at the time of election or vacancy?”
The state Democratic Party filed suit with the court on Friday, asking that a Democrat be chosen to fill the seat, and naming Tomblin, the Democratic governor, as one of the respondents in the lawsuit.
Tomblin wrote that the issue is unresolved in state law.
State code, Markham wrote, tells Tomblin to appoint “a replacement from the list submitted by the party executive committee to which the former senator ‘was affiliated,’ but does not clarify when party affiliation is relevant (i.e. at the time the former senator was elected or at the time he vacated office?).”
But, Markham reasoned, Tomblin best honors the will of the voters who elected Hall by choosing a Democratic replacement.
“Daniel Hall ran for office as a Democrat,” Markham wrote on behalf of Tomblin. “Governor Tomblin’s intention to apply Daniel Hall’s party affiliation at the time of his last election in appointing his replacement is supported by sound public policy. It honors the mandate of the voters of the Ninth Senatorial District and avoids a constitutional challenge.”
Markham added that Tomblin understands that the Supreme Court, not the governor, will ultimately decide the issue, as the Republican Party will certainly challenge his appointment of a Democrat.
“Governor Tomblin respectfully requests this Court address and resolve the issues raised,” Markham wrote, “and provide clarity on whether he is obligated to appoint a Democrat or a Republican.”
Markham wrote that Tomblin does not request the opportunity to participate in oral arguments, should the court hold them.
Attorney General Patrick Morrisey, a Republican, wrote last week that a Republican should replace Hall.
Judicial elections in West Virginia are now nonpartisan, but the Supreme Court is composed of three Democrats and two Republicans.
As it currently stands, following Hall’s resignation, Republicans hold a slight 17-16 majority in the 34-member Senate.
A Republican replacement would cement Republican control of the chamber. A Democratic replacement would result in a 17-17 tie, stymieing Republican plans for several measures they intend to push when the Legislature gavels in on Wednesday. A deadlocked vote would result in a failed bill.
The Senate also was deadlocked after the 2014 elections, but only very briefly. Hall switched parties a day after the election and was rewarded with the position of majority whip and with the chairmanship of two minor committees.
The state Republican Party has until noon today to respond to the Democrats’ lawsuit.