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

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.