CHARLESTON — Attorneys representing Gov. Patrick Morrisey are urging the West Virginia Supreme Court of Appeals to reject a request by the state Democratic Party to order the Governor’s Office to fill the vacancy in the forfeited 91st District House of Delegates seat with a Democrat instead of the Republican Morrisey appointed.

The office of Attorney General J.B. McCuskey filed its response Wednesday on behalf of Morrisey to the second lawsuit filed last week by Del. Mike Pushkin, the chairman of the West Virginia Democratic Party, and Berkeley County resident Jill Michaels.

Pushkin, D-Kanawha, and Michaels are asking the high court to grant a writ of mandamus asking the court to declare the Republican-turned Democrat Joseph de Soto was the lawfully elected delegate for the 91st District and is entitled to the seat that his fellow delegates declared forfeited on Jan. 8 by the adoption of House Resolution 4 due to de Soto being unable to take his oath of office in the House chamber as required by the state Constitution.

If the Supreme Court upholds the validity of HR 4, then the Democratic Party is asking the court to order Morrisey to rescind his appointment of Republican Ian Masters to the 91st District vacancy and choose from a list of three Democrats submitted by the Berkeley County Democratic Executive Committee.

But in his filing on behalf of the Governor’s Office, Solicitor General Michael Williams argued that the Democratic Party did not provide a required 30-day notice to the Governor’s Office of its intent to file suit, and that the Governor’s Office was the wrong party to sue in order to overturn HR 4.

“Petitioners seek relief they can’t have,” Williams wrote. “…Petitioners have no standing to sue Governor Morrisey because he didn’t cause their alleged harm, can’t fix their alleged harm, and has no duty to do what Petitioners want. What’s more, only the House of Delegates can decide whether Mr. de Soto forfeited his seat, and the House got it right when it ruled that Mr. de Soto’s seat is vacant.”

The House adopted HR 4 by voice vote during its Jan. 8 organizational session after De Soto was charged in December with making terroristic threats against fellow Republican House members, resulting in de Soto being on home confinement pending the outcome of the case. Two Republican House members also have orders of protection against de Soto that bar him from the Capitol until 10 days following the end of the 2025 legislative session on April 12.

De Soto was arrested by the West Virginia State Police following an investigation into threats made by de Soto to another person regarding several lawmakers following a closed-door meeting of the House Republican caucus on Dec. 8 after his Republican colleagues voted to move forward with his expulsion over alleged falsehoods spread by de Soto about his military record.

De Soto was elected as a Republican in November with no Democratic opposition but switched to the Democratic Party on Dec. 11. HR 4 states that due to the seat being forfeited by de Soto, the seat remains a Republican seat despite de Soto’s party switch and the vacancy must be filled by Morrisey appointing a Republican.

The Democratic Party argues that there is no evidence that de Soto has refused to take the oath of office, one of two charges listed in the state Constitution that can be used to declare a seat forfeited. Instead, the proper method of removing de Soto was expulsion.

Due to new legislative terms beginning on Dec. 1 every two years with statewide elections officially certified by mid-December following November general elections, the Democratic Party argues that de Soto was not a delegate-elect but a certified member who had merely not taken the oath yet.

Having switched parties, the Democratic Party further argues that the 91st District seat is now a Democratic seat. But Williams argued Wednesday that de Soto does not meet the legal definitions of being a qualified delegate, meaning the seat remains a Republican seat.

“Nothing suggests Mr. de Soto will ever present himself to be sworn in, much less within the two years he was elected to serve,” Williams wrote. “And because Mr. de Soto has yet to be sworn in (and never will be), he isn’t a qualified Delegate and has never held that office. Thus, his party affiliation is irrelevant in deciding which party should fill the seat; a Republican was the last actual officeholder, so a Republican must replace him.”

The Democratic Party originally filed a lawsuit against Morrisey and House Speaker Roger Hanshaw, R-Clay, but an attorney for Hanshaw filed a notice of automatic stay, which delays lawsuits against lawmakers and legislative officials during a regular or special session. The original case is stayed until after May 12, 30 days after adjournment of the legislative session on April 12.