In her dissent filed Jan. 27, Davis said last week’s 3-1 ruling that gave former state Sen. Daniel Hall’s seat to the GOP was unconstitutional.
Hall was elected as a Democrat in 2012, but he switched party affiliation to Republican after the 2014 election. His switch gave the GOP control of the state Senate with an 18-16 majority. It is the first time the Republicans controlled the chamber since the 1930s.
The Justices issued their opinion Jan. 22, rejecting the writ filed by Democrats who argued it should be filled by a member of their party because Hall was a Democrat when he was elected.
“The Court finds no ambiguity in West Virginia Code,” Justice Margaret Workman wrote in the 3-1 opinion. “Accordingly, we deny the requested writ of mandamus seeking to direct the governor to fill the current vacancy in the West Virginia Senate from a list of three candidates to be selected by the petitioners.
“The vacancy is to be filled according to the explicit provisions of the statute, from a list of three candidates to be selected by the respondent West Virginia Republican Executive Committee for the Ninth Senatorial District, based upon Senator Hall’s most recent affiliation with the Republican Party.”
Justice Brent Benjamin recused himself from hearing the case. Republican Sue Cline was sworn in Jan. 25 as the new state Senator.
In her dissent, Davis said she agreed with the majority’s reading of the law that said the seat should be filled by the party of the person “immediately preceding” the vacancy, but she said the law shows inconsistencies that violate the West Virginia Constitution.
She also was critical of the lawyers who argued the case before the court, and she criticized her fellow justices as well.
Davis said the lawyers for both parties should have looked at the constitutionality of the state code. The dissent echoed comments she made during the Jan. 19 oral arguments.
“Like proverbial deer in the headlights, the parties … have virtually frozen when faced with the full measure of the legal question presented by this case,” Davis wrote. “Because the majority of this court has insisted on following the lead of the parties and skirted around both the recognition and the resolution of this pivotal constitutional issue, I resolutely dissent.”
She also had words for Chief Justice Menis Ketchum and Justice Allen Loughry. Both of them wrote concurring opinions hinted at the political undertones of the ruling.
Ketchum noted in his concurring opinion that his ruling “effectively eliminates any chance of my being re-elected.” Judicial elections now are non-partisan in West Virginia, but Ketchum was elected as a Democrat. Loughry, who was elected as a Republican, claimed the Democrats’ case was “a thinly veiled attempt to bait the members of this court into a partisan solution.”
“When I disagree with a decision endorsed by the majority of this court, I do so because I interpret the law differently,” wrote Davis, who was elected as a Democrat. “I find it profoundly troubling that a commentary suggesting bias or impugning the integrity of a justice would ever have a place in a separate, concurring opinion.”
She said she believes allowing a Republican to fill a seat that a Democrat was elected to disenfranchises the voters.
“This construction, dictated by the statute’s plain language, effectively silences the voters’ voice and cannot be reconciled with the voters’ constitutional right to select a representative of their choosing,” Davis wrote.
Davis also notes that one section of state code says the open seat should be replaced by the party of the person “immediately preceding” the vacancy. Yet right after that, state code says the replacement should be chosen by the party executive committee from the district where the vacating senator lived “at the time of his or her election.”
Davis says that discrepancy is important because the first section instructs how to choose the party, while the second section instructs how to choose the geography.
Davis argues that by the Legislature saying the replacement senator should be from the district’s geographical boundaries at the time of election, the voters’ choice of parties at the time of election should be recognized as well.
State code “cannot constitutionally be applied as it is written because the express language is internally inconsistent, contravenes the underlying legislative intent, and violates the West Virginia Constitution,” she writes.