WV Senate Democrats raise legal concerns with DEI bill’s passage

Democrats in the West Virginia Senate are urging Gov. Patrick Morrisey not to sign a bill they say was not legally passed because of a “series of procedural irregularities.”

The letter concerns the Senate’s passage of Senate Bill 474, a governor-requested bill that would end diversity, equity and inclusion initiatives in the state. 

The House of Delegates passed the bill late on Saturday, the last day of the 60-day legislative session. The Democrats say the Senate erred in the procedures it took late Saturday night as it approved the House’s amended version of the bill. 

In a letter to the governor, Senate President Randy Smith and Senate Clerk Lee Cassis Thursday, Sens. Mike Woelfel, D-Cabell, and Joey Garcia, D-Marion, the only two senators from the minority party, say that Senate Republicans improperly suspended a rule they apparently used to bypass considering several pending amendments from Garcia and pass the bill in the final minutes of session. They also argue the Republicans made two other procedural errors. 

“Due to the Senate’s patent disregard of established legislative procedure, the bill did not properly complete legislative action, and it should not be enrolled, authenticated, or presented to the Governor for approval,” the letter says. “If the bill is sent to the Governor, it must be vetoed on technical grounds due to the Senate’s failure to adhere to its own binding rules of  procedure.”

The Senate originally passed the bill March 26. The House passed the bill at 10:41 p.m. Saturday after nearly three hours of debate. When the bill went back to the Senate to approve the House’s changes, more than a dozen amendments from Garcia appeared to be pending on the legislation. 

Sen. Amy Grady, R-Mason, at first made a motion to concur with the House’s changes to the bill and pass it. The senate stood at ease for a few minutes before Grady withdrew the motion. 

A few minutes later, Sen. Eric Tar, R-Putnam, moved to suspend Joint Rule 3, which governs how amendments to amendments and disagreements are handled between the two legislative chambers, and concur and pass Senate Bill 474. The rule suspension required a two-thirds roll call vote by both chambers, but the approval was made by a voice vote and with objections heard. The Senate then passed the bill with a 31-2 vote.

A short time later, Tarr moved to reconsider the vote by which they concurred and passed the bill. The Democrats argue that the Senate failed to properly reconsider the motion. Tarr instead moved to withdraw his motion and then moved to concur with the House’s version of the bill. 

Next, Senate Majority Leader Patrick Martin, R-Lewis, moved the previous question. Smith turned down Garcia’s request that pending amendments be considered, saying that another motion had been called. 

The Senate then voted again to concur with the House’s version of the bill and then passed the bill. 

Even if the Senate’s first passage of the bill was done properly, the Democrats argue, the Senate was required to consider the pending amendments before it could concur in the House’s changes to the bill, and they failed to do so.

“If the senator and the governor don’t do the right thing, I think this will be litigated and the bill will go down in flames,” Garcia said in an interview with West Virginia MetroNews Thursday.

The West Virginia Democratic Party and the American Civil Liberties Union of West Virginia have also condemned the way the bill was passed. The ACLU-WV wrote in a blog post Monday that the Senate likely broke its own rules in rushing the bill through at the last minute. 

“If Gov. Morrisey signs the bill (which we fully expect he will) then we will see the state in court,” the organization wrote.

Representatives for Morrisey and Smith did not comment Thursday.