A bill Gov. Jim Justice vetoed last year as a Democrat quietly became law without his signature on Saturday.
The West Virginia Legislature passed House Bill 3004, which says when certain politicians vacate office, they must be replaced by a member of their party at the time of their resignation — not necessarily their election.
A Republican again, as of August 2017, Justice did not sign the bill within five legislative days from when it was passed, thus enacting it into law by default.
State code, as it’s currently written, says vacancies in the state Legislature should be filled by members of the party “with which the person holding the office immediately preceding the vacancy was affiliated.”
The new legislation codifies a state Supreme Court ruling made when former-Sen. Daniel Hall — who was elected as a Democrat in 2012, switched to the Republican party in 2014, and resigned to lobby for the National Rifle Association in 2016. When Hall vacated office, it triggered a challenge as to whether then-Gov. Earl Ray Tomblin should appoint a Democrat or a Republican.
The court interpreted the code section to say Tomblin must pick a member of Hall’s party at the time of his resignation, not his election, solidifying the appointment of Sen. Sue Cline, R-Wyoming.
The bill expands and clarifies the provision, and also adds similar language requiring replacement by a member of the same party for constitutional officers, U.S. Senators and county commissioners.
It does not alter existing law regarding a gubernatorial vacancy, in which the Senate president would act as governor until a special election takes place.
Justice vetoed a similar piece of legislation, Senate Bill 255, last year. He warned at the time, as several Democrats did this year, that the bill could expose the state to a number of unintended consequences.
Critics said, if politicians on their way out could switch parties to curry favor or break from the Democrat-Republican dichotomy, the bill leaves the door open to many problems.
“It rewards political tomfoolery, rather than the will of the voters in the previous election,” Justice said in a veto letter last year. “If applied to a situation where a Republican or Democrat switches his or her party designation to the Communist Party before vacating the office, enrolled Committee Substitute for Senate Bill 255 would require the Governor to appoint a replacement from the Communist Party. That unfathomable scenario is possible under his bill, and I cannot sign it into law.”
The new law will benefit at least two politicians from different parties in the state running for higher office.
Attorney General Patrick Morrisey is running for U.S. Senate in the November election. If he were to win the primary and the general election, he would vacate his seat with two years left in his term. The new law would require Justice to appoint a Republican attorney general from a list of three candidates submitted by the state party’s executive committee. Current law says Justice could pick anyone from any party.
In June, before Justice switched parties, Rep. Evan Jenkins, R-W.Va., who is running against Morrisey in the primary, criticized him on the premise that Justice would likely appoint a Democrat if Morrisey won the general.
“The big question and concern from voters is, ‘We voted for you for attorney general for the next four years, it’s a promise you made to us, and now you’re breaking that promise and attempting, for your own political ambition, to leave a vacancy that would be filled by Gov. Justice,’ ” Jenkins said. “It undoubtedly would be a Democrat. Without any impact from voters, one person would decide who our chief lawyer would be for the next two years. That’s not what voters voted for in 2016, and it’s not what Patrick Morrisey promised.”
Likewise, Sen. Richard Ojeda, D-Logan, is running for Congress in the 3rd District. If he were to win the primary and general election, he also would vacate a seat with two years left in the term.
Along with Hall and Justice, several sitting lawmakers have switched parties during their time in office. Senate Majority Leader Ryan Ferns, R-Ohio, served two terms in the House of Delegates as a Democrat before crossing over.
Delegate Rupie Phillips, R-Logan, served as a Democrat for several terms before briefly identifying as an independent, and then registering as a Republican to run for Congress.
Jenkins served in state House and Senate as a Democrat, before joining the Republican Party to run for Congress.
Additionally, Mike Oliverio, a former Democrat, is running as a Republican in 2018 against Sen. Bob Beach, D-Monogalia.