Not even a foot or more of snow could deter the West Virginia Supreme Court of Appeals from issuing a Friday decision in an important legal dispute over a State Senate seat. The decision in State ex rel. Biafore v. Tomblin is here. State Senator Daniel Hall was elected as a Democrat from the Ninth District, which is comprised of Raleigh and Wyoming counties, and part of McDowell County, in the southern part of the State. He then switched parties to become a Republican, but subsequently resigned from office to take a position with the NRA. West Virginia statute says the governor shall fill the vacancy “from a list of three legally qualified persons submitted by the party executive committee of the party with which the person holding the office immediately preceding the vacancy was affiliated.” See W.V. Code 3-10-5.
The state Democratic Party sought mandamus, claiming that because voters picked a Democrat to fill the seat, the Governor should have to fill the vacancy with a Democrat. The court held that West Virginia statutory law is clear and unambiguous – Hall was a Republican at the time of his resignation, and therefore, the Governor must fill the seat with a Republican.
This decision ensures that political power in the State Senate will stay with the Republicans. It is notable that, in addition to the statutory interpretation claim made by the Democrats (which never really stood a chance, based on a proper reading of the statute), the petitioners also argued that if the statute is read to require the appointment of a Republican, this violates the federal Constitution. The court had little trouble rejecting that claim, discussing the United States Supreme Court’s holding in Rodriguez v. Popular Democratic Party. There, the Court held unanimously that Puerto Rico did not violate the Constitution by having a statute that vested in a political party the power to fill a legislative vacancy. The Puerto Rico legislation there differed somewhat from the West Virginia law, but the constitutional principles applicable to the West Virginia law would produce the same result, as the state supreme court held.
Moreover, I would add, the people of the Ninth District had a full, equal, and fair opportunity to select their representative in the Senate at the time of the election; nothing about that election has been called into question as a matter of federal constitutional law, and nothing about a gubernatorial appointment to fill the seat would implicate the federal rights of those voters (I also note that the federal Constitution does not define any right to vote in state elections, but voting in state elections is protected under the equal protection-only fundamental rights component of the Supreme Court’s 14th Amendment case law).
Consequently, if the West Virginia Democratic Party wanted to take the case to the United States Supreme Court, it would have a legal basis for doing so (having raised a federal constitutional question that was decided on the merits by the state court). But I can see no scenario in which the Court would even grant the case, much less reverse on the merits. Not only would the Court likely defer to the state court’s interpretation of state law and to the sovereign power of states to determine how to fill their own legislative vacancies, the Governor could respond that the claim raises a political question that should not even be decided by a federal court. So I imagine the Court would have little interest in intervening in West Virginia politics at this level. And I doubt the Democrats will take the time to appeal the decision.
Especially notable is the concurrence by Chief Justice Ketchum, who wrote:
“I realize that my vote in this case effectively eliminates any chance of my being reelected to our supreme court. Nevertheless, I took an oath to impartially apply our laws and I promised to set political favoritism aside. The statute in this case is clear. . . . Senator Hall was a registered Republican when he vacated the office. So be it!”
Governor Tomblin has now filled the seat, appointing Sue Cline of Beckley.