Surprise: West Virginia says no election to fill Byrd’s seat until 2012

posted at 6:15 pm on June 28, 2010 by Allahpundit

C’mon. You didn’t honestly think a Democratic governor and Democratic secretary of state would risk a Scott Brown reprise, did you? Here’s the state statute:

Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals, or in any office created or made elective, to be filled by the voters of the entire state, or judge of a circuit court, shall be filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, or a judge of the circuit court, be for less than two years; or if the unexpired term of any other office named in this section be for a period of less than two years and six months, the appointment to fill the vacancy shall be for the unexpired term. If the unexpired term of any office be for a longer period than above specified, the appointment shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.

In other words, it’s not merely a question of whether the seat is vacated before or after the midway point of the term. It has to be vacated before that year’s filing deadline, primary, etc.; otherwise, the governor gets to appoint someone and that person stays in office until the next filing deadline rolls around — i.e. 2012. The ruling from the secretary of state:

“The State Code is an interesting document. Within Chapter 3 that focuses on elections, there are several sections that determine how vacancies are filled.

“Section 3-10-3 states that for terms with more than two years and six months remaining, such as this one with Senator Byrd, the Governor will appoint a replacement who serves the unexpired term until a successor has been elected.

“But that election will not be the 2010 General election. Part of this same section of code, requires the candidate to have filed during the filing period. That filing period has already passed. There was a legal case in 1994 decided by the West Virginia Supreme Court of Appeals that up held that position of requiring candidates to file during the filing period.

“That means the election for the unexpired term would be the next election cycle which would take place in 2012. Candidates will be nominated in the primary and elected in the general of 2012.

Here’s the court case she mentions. The West Virginia primary was May 11, and evidently they don’t usually hold any odd-year elections there. So the effect of this very stupid law is that had Byrd died in another week or two, past the midway point of the term, the governor could have appointed a successor to finish his term; as it is, thanks to the caveats about special-election candidates having to qualify for primaries under the normal election timetable, he gets to appoint someone for the remainder of Byrd’s term anyway. Not dumb enough for you? Try this on for size: According to the SoS, they’ll actually have to hold two elections in 2012, one the special election mandated by Byrd’s death and the other the normal general election. The winner of the special election will be seated immediately and will serve two months from November 2012 to January 2013, when the winner of the general election is seated as part of the new Congress. Not a huge deal since the winner is bound to be the same in both elections, but stupid nonetheless.

Via Ace, your exit quotation from the SoS website: “The West Virginia State Constitution provides a clear mandate that all elective state and local offices should be filled by the voters as soon as possible after a vacancy occurs.”

Update: The likely appointee? West Virginia’s governor, Joe Manchin:

It has been an open secret in the Mountineer State for years that Manchin covets a Senate seat, and his second term as the state’s chief executive expires after the ’12 elections — meaning he could very likely appoint himself.

Manchin is hugely popular — the latest survey, conducted Aug. 27-30 of last year by Mark Blankenship Enterprises, gave Manchin a 78% approval rating, 9 points higher than Byrd’s — and his candidacy would give Dems a good chance of holding a seat that, at a presidential level, has trended away from them in recent years.


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I’m gonna Fabricate and Manufacture Outrageously Outrageous
Outrage!!

canopfor on June 28, 2010 at 6:18 PM

Was Senator Byrd really alive anyway? Watch him listen to Harry Reid.

portlandon on June 28, 2010 at 6:18 PM

That’s nothing. Expecting the following headline on Hotair in 2012:

“Surprise: White House says no election until ……”

Norwegian on June 28, 2010 at 6:18 PM

Manchin can go suck a di

/whoa, what?

Abby Adams on June 28, 2010 at 6:19 PM

C’mon. You didn’t honestly think a Democratic governor and Democratic secretary of state would risk a Scott Brown reprise, did you?

No – I did not.

oldfiveanddimer on June 28, 2010 at 6:19 PM

Lawyer up now!

petefrt on June 28, 2010 at 6:20 PM

Update:

shocka!

i feel a crist redux coming

cmsinaz on June 28, 2010 at 6:20 PM

And West Virginia Republicans will be filing a lawsuit, yes?

Enoxo on June 28, 2010 at 6:22 PM

OK, now who appoints the replacement Governor?

cthulhu on June 28, 2010 at 6:23 PM

“The West Virginia State Constitution provides a clear mandate that all elective state and local offices should be filled by the voters as soon as possible after a vacancy occurs.”

Smile of the day – soon to them means years…

Schadenfreude on June 28, 2010 at 6:24 PM

This seems OK to me; after all, it is a Senate seat, and a special election is not required, as would likely be the case for a Congress Critter. It’s way too late for the 2010 election cycle, as I think the West VA primary has passed, so they have to wait until 2012.

But the Governor appointing himself? That’s just wrong.

Henry Bowman on June 28, 2010 at 6:25 PM

Either way, one less incontinent politician in Wash. D.C…

Schadenfreude on June 28, 2010 at 6:25 PM

Update: The likely appointee? West Virginia’s governor, Joe Manchin:

He might want to check with former MN governor and former senator Wendell Anderson of Minnesota on that. Anderson had himself “appointed” to a vacant seat by resigning and having the new governor appoint Anderson.

Minnesota voters tossd Anderson out of the sente in the next election. But then, they may have a greater capacity for civic outrage than WV voters.

Wethal on June 28, 2010 at 6:26 PM

The voters of West Virginia should take note of the Democrats who didn’t want them to vote on the replacement for Senator Byrd.

wren on June 28, 2010 at 6:28 PM

Update: The likely appointee? West Virginia’s governor, Joe Manchin:
It has been an open secret in the Mountineer State for years that Manchin covets a Senate seat, and his second term as the state’s chief executive expires after the ‘12 elections — meaning he could very likely appoint himself.

More like a Murkowski redux. So who gets to run the state of West Virginia while Manchin appoints himself to 2 1/2 years in the Senate?

Steve Z on June 28, 2010 at 6:29 PM

Steve Z on June 28, 2010 at 6:29 PM

you’re right…my bad

cmsinaz on June 28, 2010 at 6:30 PM

Why don’t they go back to the old way and have the WV legislature pick a successor? Having an appointee for two years seems hardly the will of the people.

WitchDoctor on June 28, 2010 at 6:31 PM

I’ve been predicting that that seat would go Republican as soon as Byrd passed on, but Manchin could be a problem.

forest on June 28, 2010 at 6:32 PM

West Virginia Gov. Joe Manchin said Monday morning he will not appoint himself to fill the U.S. Senate seat held by Sen. Robert C. Byrd, who died this morning.

Mr. Manchin, a Democrat, also said he has no timetable for considering a replacement for Mr. Byrd, who at 92 was the longest-serving member of Congress.

Washington Times

Manchin apparenlty has some integrity. He was likely to run for Byrd’s seat in 2012 anyway. So he’ll appoint a placewarmer who will promise not to run in 2012.

Wethal on June 28, 2010 at 6:32 PM

The voters of West Virginia should take note of the Democrats who didn’t want them to vote on the replacement for Senator Byrd.

wren on June 28, 2010 at 6:28 PM

Sure, but they like Manchin and were going to vote him into the seat anyway.

myrenovations on June 28, 2010 at 6:33 PM

If this is the law, you have to wonder why they didn’t push Byrd to resign the day after the 2010 filing deadline. Why did they continue the charade of having him actually filling the Senate seat?

rockmom on June 28, 2010 at 6:35 PM

So the effect of this very stupid law is that had Byrd died in another week or two, past the midway point of the term, the governor could have appointed a successor to finish his term; as it is, thanks to the caveats about special-election candidates having to qualify for primaries under the normal election timetable, he gets to appoint someone for the remainder of Byrd’s term anyway.

If Byrd had died before the primary, or about a month and a half ago, his appointed successor would have only served through January 2011.

There are already five appointed Senators in this Senate (in NY, DE, IL, CO, and FL). Who needs some stupid ol’ election anyway?

Steve Z on June 28, 2010 at 6:36 PM

Here’s What Happens To Robert Byrd’s West Virginia Senate Seat
—–

Byrd’s current term expires on January 3, 2013. Under West Virginia state law on handling Senate vacancies, “if the vacancy occurs less than two years and six months before the end of the term, the Governor appoints someone to fill the unexpired term and there is no election”. Otherwise, Manchin [Ed note: a Democrat] would appoint an interim replacement, and an special election would be held in November to determine who held the seat in 2011 and 2012.

In other words, we are within a week of the threshold established by West Virginia law. If a vacancy were to be declared on July 3rd or later, there would not be an election to replace Byrd until 2012. If it were to occur earlier, there could potentially be an election later this year, although there might be some ambiguities arising from precisely when and how the vacancy were declared.

So there will likely be a special election later this year to replace him.
==================

Read more: http://www.businessinsider.com/heres-what-happens-to-robert-byrds-west-virginia-senate-seat-2010-6#ixzz0sBq7PwMw

canopfor on June 28, 2010 at 6:36 PM

Manchin apparenlty has some integrity. He was likely to run for Byrd’s seat in 2012 anyway. So he’ll appoint a placewarmer who will promise not to run in 2012.

Wethal on June 28, 2010 at 6:32 PM

Charlie Crist just tried that, and it isn’t working out too well for him!

rockmom on June 28, 2010 at 6:36 PM

Charlie Crist just tried that, and it isn’t working out too well for him!

rockmom on June 28, 2010 at 6:36 PM

LeMiuex isn’t running in the fall. He might challenge Bill Nelson in 2012, but he promised Crist that if Crist appointed him to Martinez’ seat, he’d only finish out the term.

Wethal on June 28, 2010 at 6:39 PM

Was Senator Byrd really alive anyway? Watch him listen to Harry Reid.

portlandon on June 28, 2010 at 6:18 PM

..watched it..can you please tell me which one was asleep?

The War Planner on June 28, 2010 at 6:39 PM

Maybe the Massachusetts legislature should have patterned their law of succession after West Virginia’s.

GarandFan on June 28, 2010 at 6:40 PM

Maybe he should appoint Alan Mollohan. He needs the work, and he has plenty of, ahem, experience.

forest on June 28, 2010 at 6:40 PM

So the if the Governor appoints himself there a special election for that seat reading on the West Virgina Constitution art. VII, § 16.

7-16. Vacancy in governorship, how filled.

In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.

since they are only in year two of the four an election is warranted. Is Joe Manchin and the Dem’s willing to lose a governorship just so he can have that seat. Yes he won by 3-1 margin but that was on Obama’s coattails and a Dem year. Now it is a Republican year and they will toss a lot more into the election than was put in 2008

tjexcite on June 28, 2010 at 6:40 PM

Maybe he should appoint Alan Mollohan. He needs the work, and he has plenty of, ahem, experience.

forest on June 28, 2010 at 6:40 PM

Now, that would be priceless.

myrenovations on June 28, 2010 at 6:46 PM

I still say that 3-5-19,(7),(b) applies. The next General Election is 2010. Section 3-10-3 provides for filling any vacancy greater than 2.5 years AND earlier than the normal procedure of “timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.”

Section 3-10-3 does not provide for the gap between the normal procedure and 2.5 years. This is reconciled by Section 3-5-19 which is more specific, a principle the judge referred to as the general rule in Caperton:

“The general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled”

Section 3-5-19 reconciles the void created by 3-10-3, which by the reading/determination of the SoS(?) requires an appointment now PLUS two elections on the same date for the same seat but for two different periods of time.

Take it to court!

Dusty on June 28, 2010 at 6:47 PM

So there are no more racist porKKK – loving hypocrites left in WV
to face the voters
and win ?
Is that good ?

macncheez on June 28, 2010 at 6:50 PM

Looks like Bryd is about to let loose with some wicked force lightening!

ThePrez on June 28, 2010 at 6:53 PM

Demo-Crazy

blatantblue on June 28, 2010 at 6:55 PM

doesn’t matter. whichever Dem that gets appointed will have to face the voters in 2012 and as such is a no vote for the obama agenda. still gives the GOP a better filibuster than before

unseen on June 28, 2010 at 6:57 PM

What the Gov’s stand on Cap-n-Tax? Specifically as it relates to coal?

BKeyser on June 28, 2010 at 7:09 PM

Dusty on June 28, 2010 at 6:47 PM

The ‘Rats would use your argument if they need…er, wanted to take a seat that would otherwise be filled by a Republican for the next 30 months. Unfortunately, the case cited in the main post precludes the (mis)application of a vacancy in the nomination for an existing election to this situation.

steveegg on June 28, 2010 at 7:10 PM

I’m perfectly okay with this. As an opponent of the 17th Amendment, I think all Senators should be appointed by state governments.

Fabozz on June 28, 2010 at 7:17 PM

And West Virginia Republicans will be filing a lawsuit, yes?

Enoxo on June 28, 2010 at 6:22 PM

HA HA good one.

angryed on June 28, 2010 at 7:27 PM

Predictable. The last thing Democrats want are the voters deciding their representatives, especially this year.

Vyce on June 28, 2010 at 7:31 PM

Would be better with Sheets showing up once every 3 weeks…

phreshone on June 28, 2010 at 7:34 PM

My WV friends tell me that Manchin is pretty damn conservative. Throw in the fact that he has to run in 2012, with Obama at the top of the ticket, and he may quickly become every conservative’s favorite democrat.

He was gonna get the seat anyway. This way he gets it without owing anybody on the left any favors. And Republicans don’t end up wasting 5-10 millions bucks we can ill afford to spend.

BuzzCrutcher on June 28, 2010 at 7:35 PM

Well as odd as it seems WV likes Democrats. They loved Byrd,the Governor, and Rockefeller. The Secretary of State there is also a Democrat. Republicans need not apply.

sandee on June 28, 2010 at 7:35 PM

The last of the KKK’s is gone. The democrats need another one of reverend Wright’s sycophants to fill the vacant spot.

Mojave Mark on June 28, 2010 at 7:53 PM

It’s not just that they ‘usually’ hold primaries in even-numbered years, it’s state law. Which makes this even more pointless. (My look at the whole mess http://zerosheep.com/2010/06/28/west-virginia-election-law-is-job-security-for-lawyers)

zerosheep on June 28, 2010 at 7:56 PM

Gee. Democrats changing the law to suit their nefarious purposes.
What a surprise.

ToddonCapeCod on June 28, 2010 at 7:59 PM

Why must we wait until 2012. If it is too late for 2010, why not 2011? I hope a lawsuit is being filed by the WV GOP.

tommylotto on June 28, 2010 at 8:02 PM

Which means the seat will be a toss up in another fifty years.

RobCon on June 28, 2010 at 8:03 PM

All we need is the calliope and the little monkey bashing the cymbals…

Khun Joe on June 28, 2010 at 8:05 PM

Byrd was an expert in Congressional slight of hand to the very end.

RobCon on June 28, 2010 at 8:07 PM

Update:

The Democrats latest plan is to keep Senator Byrd in his senate seat, packed in ice, while they issue a series of press releases on his continuing failing health…a la General Franco.

A six month version of a ‘Weekend With Bernie’. There are no lengths that they will go to keep control of the Senate.

Uniblogger on June 28, 2010 at 8:22 PM

A couple of months seniority in the senate is not meaningless.

burt on June 28, 2010 at 8:41 PM

News of the future: West Virginia first state to re-elect senator, post-mortem. The body will be present to accept this high honor, a first even for West Virginia. The body’s movements are possible with the latest prosthetic implants. Coordination and votes will be managed by a committee of objective Democrats on a rotating basis…

Feedie on June 28, 2010 at 8:43 PM

That’s nothing. Expecting the following headline on Hotair in 2012:

“Surprise: White House says no election until ……”

Norwegian on June 28, 2010 at 6:18 PM

Heh!

GrannyDee on June 28, 2010 at 8:48 PM

Hey, the hicks and hayseeds in West Virgineey voted for the Byrdster for what 52 years…..and lest we forget Jay Rockefeller found a state he could get elected from and bought his seat years ago.

We love the Coal and the hand-blown glass from that state but Political leaders of a Conservative stripe…..mmmmmm, not so much.

PappyD61 on June 28, 2010 at 8:50 PM

longest-serving member of Congress.

Under the Byrd-Kennedy Amendment to the Constitution this language would be inserted as the newest amendment.

“Terms of all Representatives and Senators shall be limited to one, in addition Congress shall pass no law that they themselves are immune from.”

Who can we get to introduce that proposal?

PappyD61 on June 28, 2010 at 8:55 PM

Republicans should take this one to court.

SC.Charlie on June 28, 2010 at 9:39 PM

Maybe they should “weekend at Bernie’s” him – most people wouldn’t notice.

Corsair on June 28, 2010 at 9:46 PM

We are no longer a nation of laws.

jukin on June 28, 2010 at 10:09 PM

Not a huge deal since the winner is bound to be the same in both elections, but stupid nonetheless.

It is hardly stupid. It is normal procedure, under the 17th amendent:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The Constitution is clear here. An appointment made by a governor is temporary, until an election can occur to fill the vacancy. If WV law provides that election will be Nov. 2012, then it will be then, and as soon as the victor of that election is determined, the appointed senator’s authority to keep the seat warm evaporates in a poof of inexorable constitutional logic.

Some states hold that the election for the next term automatically is an election for the remainder of the unexpired term as well, but that is clearly a matter for the state legislature to decide. There are some reasons why they may have chosen to give the voters that additional flexibility to explicitly elect the seat-warmer.

The Monster on June 28, 2010 at 11:09 PM

Manchin is hugely popular — the latest survey, conducted Aug. 27-30 of last year by Mark Blankenship Enterprises, gave Manchin a 78% approval rating, 9 points higher than Byrd’s — and his candidacy would give Dems a good chance of holding a seat that, at a presidential level, has trended away from them in recent years.

If he hopes to remain popular enough to survive 2012, he’ll have to oppose Ojesus’ Cap and Trade, anti-coal agenda. There are some other areas where he will be on the conservative side if he hopes to keep his seat past the general election.

I can’t stress how dependent West Virginia’s already abysmal economy is upon coal production, both above and below ground. King Coal lives on in most of West-by God-Virginia.

hillbillyjim on June 28, 2010 at 11:35 PM

I can’t stress enough how…

*&%@

hillbillyjim on June 28, 2010 at 11:37 PM

Well as odd as it seems WV likes Democrats. They loved Byrd,the Governor, and Rockefeller. The Secretary of State there is also a Democrat. Republicans need not apply.

sandee on June 28, 2010 at 7:35 PM

It’s not odd to those of us from there. I left home in 1975, convinced that every Republican had horns and a tail. My first vote was for Jimmy Carter because….he wasn’t a Republican. I have since repented and tried to make amends with each election.

My Mom, God bless her, and those of her generation still living there still worship FDR and The New Deal. To them all corporations are evil and Democrats “are for the working man.”

The UMW doesn’t hold the sway it once did but in the southern and northern coal fields they still toe the line on election day, even though it’s the Dems allegiance to the enviros that is killing their livelihood.

To make matters worse, the traditionally Democrat controlled state legislature ensures that the tax and regulation climate for business is burdensome enough that new businesses don’t want to start there, regardless of what the Charleston Gazette Pravda may say.

There are a lot of younger folks there that have different views on how things should be run, but I’m not sure they are going to shake things up any time soon.

TugboatPhil on June 28, 2010 at 11:52 PM

It stinks but it’s just delaying the inevitable. That seat flips GOP in 2012.

LFRGary on June 29, 2010 at 12:28 AM

Come, come now my friends, why should not a completely illegal State do whatever it wishes. It was created in direct violation to the Constitution, which prohibits the creation of a State out of the territory of another established State (the illegality having been confirmed by a stacked Supreme Court). Let the poor hillbillies do what they please. After 150 years of ignoring their antics, it’s too late to start objecting!

John Adams on June 29, 2010 at 1:33 AM

TugboatPhil on June 28, 2010 at 11:52 PM

That is an interesting take on WV. I never blamed the country for voting Carter in those days. The monopoly media ensured it and the country was weary of Watergate, Vietnam, and the depressing Ford. It sounds like pure emotion to keep enabling a party that is clearly destructive to one’s own interests. At the same time, I blame the Republican Party more for the decline of the past few decades.

It was the RINOs and country-club trash who lied to voters repeatedly in the post-Reagan years. They played the lesser-of-evils game, then stuck their tongues out at the people. The people reacted and it’s an ugly picture. Reagan knew the people and respected them, and it showed. So he won by giving honest choices.

Feedie on June 29, 2010 at 2:51 AM

Went With The Wind:

Scarlett’s Father: “They sold out both the coal mining industry and the coal fired energy industry in the State to please Obama?”

Scarlett’s Mother: “Yes, Mr. O’Hara!”

Scarlett’s Father: “The Yankee carpetbagger Rockefeller and the white trash Klan member Byrd?”

Scarlett’s Mother: “We will speak of the matter later, Mr. O’Hara.”

Scarlett’s Father: “Yes, Mrs. O’Hara”.

John Adams on June 29, 2010 at 3:02 AM

Well this figures as the Sec State of WV is Natalie Tennant (D). She is a George Soros SOS-Project backed official. Click here to read about the SOS-Project and you’ll see Tennant’s name listed, as well as MN’s Mark Ritchie, of the Coleman/Frankin debacle.

JeffVader on June 29, 2010 at 3:57 AM

On the bright side, that’s a solid vote against Cap-n-Tax.

MJBrutus on June 29, 2010 at 5:46 AM

I think Byrd was the model for Weekend at Bernies…

right2bright on June 29, 2010 at 7:30 AM

Nick Casey will be the governor’s appointee. He is the current Democratic Party Chairman. He has been held up for a federal bench appointment by Capito and this would give him some time in Washington to rub shoulders with the establishment for another go at the bench in 2012. Casey is very close to the Governor and one of a few he can trust to not seek the senate seat in the next election cycle.

Manchin is very popular in the state but knows it would be suicide to appoint himself now. History has not been kind to those who fill vacancies. That is especially true when you step down from Governor during rough economic times. Nick Casey is the place holder.

natesnake on June 29, 2010 at 8:34 AM