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June 28, 2010

There Will Be a Special Election In West Virginia

You might think this was obvious, but in fact, had Robert Byrd lived until July 3rd, there would have been no special election at all -- the Governor (a Democrat) would have appointed someone to hold the seat until Byrd's term expired (in 2013).

He died just days before that rule would have kicked on.

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.

Yeah, that is a sticking point -- the governor could, I suppose, wait until July 3rd to establish a vacancy, but that, I imagine, would set up an immediate lawsuit which would be resolved against him. I cannot imagine how someone can claim that there is no vacancy when the sitting Senator is dead.

I mean, this is not an ambiguous case, like he's alive but stricken with illness.

McCain beat Obama in 2008 in West Virginia by 13% of the vote.

Declaring a Vacancy: I don't know the law here at all, but a Governor may declare a vacancy when the Senator is still living -- stricken and unable to perform his duties, in jail, etc.

That is, I'll call it, a permissive declaration.

Although he could expect some pushback and possible lawsuits from the Senator if he tried to get jiggy with this power. Obviously a Governor can't "declare a vacancy" on a whim -- so if there is not a specific law on what conditions make a seat ripe for a declaration of vacancy, expect the courts to fill in the common-sense restraints.

On the other end of it, there is what I'll term a mandatory declaration. If the guy is dead, the governor has no decision-making power in declaring a vacancy, or not declaring a vacancy. Facts themselves have declared it. The Governor's power is a formality here.

Now if the courts would have power to restrain a governor from declaring a vacancy on a whim (as I believe they must), I also have to think they could restrain a governor from refusing to declare a vacancy on a whim.

If the Governor is permitted to delay a declaration by a week, why could he also not wait a month? How about a half of a year? How about a full year?

Instead of guestimating how long he may wait to declare a vacancy, isn't the bright-line, no-argument, common-sense solution that if a senator dies the vacancy begins at the moment of his death?

West Virginia already has a long period, established by law, for a governor's unelected appointee to serve out the term in a Senate vacancy. Allowing the governor to wait a week extends this still further, contrary to the law.

In other words, I think West Virginia's law establishes the maximum amount of time that the state may have a vacancy and appointment to that vacancy, and the Governor may not override the state law through exercise of claimed executive power.

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posted by Ace at 11:11 AM

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