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June 28, 2010

More Arguing Over Byrd's Vacancy
Update: Sec of State Tennant to Give Presser at 4:30PM; Her Own Words on Succession

ZeroSheep sends this link.

He says this means the limitation of two years, six months applies to the length of service of the appointed replacement, and thus state law okays it if the Governor waits a week (or, presumably, a month, or two months, or a half a year, or a year).

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. Proclamation of any election to fill an unexpired term shall be made by the governor of the state, and, in the case of an office to be filled by the voters of the entire state, shall be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county of the state. If the election be to fill a vacancy in the office of judge of a circuit court, the proclamation shall be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in the judicial circuit.

I've bolded the part I argue -- or at least I hope -- applies. In the case of Byrd, the unexpired term is more than two years, six months. So I would argue the appointment-until-next-election rule kicks in.

Yes, the governor can delay his declaration, but that doesn't change the fact (I would argue) that the unexpired term of the vacancy was actually more than two years, six months.

I mean, the fact is, the vacancy has occurred now. This is the fact. The governor can declare or not declare a vacancy; but the vacancy has, in fact, already occurred, with more than 2 years, six months left in the unexpired term.

The seat is currently vacant. I want to keep saying that. What the governor may declare is, to my mind, irrelevant; we know for a fact it is vacant, right now, more than two years six months before the expiry of the term.

Bear in mind I'm a determined advocate here so I think maybe I'm seeing this the way I wish it to be.

On the Democrats' argument we can't have a timely primary:

If the vacancy is to be filled at a general election and shall occur before the primary election to nominate candidates to be voted for at such general election, candidates to fill the vacancy shall be nominated at such primary election in accordance with the time requirements and the provisions and procedures prescribed in article five of this chapter. When nominations to fill such vacancy cannot be so accomplished at such primary election, and in all cases wherein the vacancy is to be filled at a special election, candidates to be voted for at such general or special elections shall be nominated by a state convention to be called, convened and held under the resolutions, rules and regulations of the political party executive committees of the state.

So the rules apply for a state convention if there isn't enough time for a primary. Correction: This part of the code applies to a gubernatorial vacancy, not a senatorial one.

The Secretary of State Will Make an Announcement at 4:30 PM. And she is... a Democrat.

West Virginia Secretary of State Natalie Tennant will explain the succession process for the late Sen. Robert Byrd's (D-W.Va.) seat during a press conference Monday afternoon, according to her spokesman.

Tennant's office has been consulting with the staff of Gov. Joe Manchin III (D) to determine how to proceed. The state's election code isn't clear about whether a special election should be held to fill the remainder of Byrd's ninth term or whether a placeholder can serve until 2013.

Gentlemen, start your lawsuits.


Oh: Here is Secretary of State Natalie Tenant herself (at least the webpage announces it's her authorship).

Vacancies and Unexpired Terms

Basic Principles

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. State law steps in to spell out how vacancies are filled temporarily, and to resolve issues about how candidates will be nominated and when the office will again be filled by election.

The United States Constitution governs how vacancies in the Congress are filled. Although the Governor appoints to fill a vacancy in the U. S. Senate, only the voters may fill a vacancy in the House of Representatives, even for a few months.

Filling an unexpired term when a vacancy occurs can become a complicated legal issue. The rules differ for different offices and for different times during a term. Regardless of the differences, however, the law provides a specific way to insure that elective offices don't remain vacant. Use these links to go to more information below.


United States Senate

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. If the vacancy occurs two years and six months or more before the end of the term, the Governor appoints someone to serve until the unexpired term is filled at the conclusion of the next candidate filing period, Primary Election, General Election and certification.
.

This is the Secretary of State's reading of the law -- at least before she found the party didn't want her read it this way.

The "clear mandate" is to fill these seats by election as soon as possible, and her own digest states that the relevant timeframe is from the start of the vacancy itself, not from the governor's declaration of the vacancy after the fact.

The seat is now vacant.

The seat is now vacant.

The seat is now vacant.

I have to keep repeating that.

More: I think I misunderstood ZeroSheep. I think he's arguing what I'm arguing. He writes:

Not sure where the "vacancy declared" language is coming from; I looked at the Nate Silver article, and he cites back to the W. Va. SoS. The only language in the statute, though, is "Any vacancy occurring in the office of . . . "

I don't have access to the case law, but the statute treats the vacancy as something that just happens, with -- only after the fact -- the governor then making appointments and, if necessary, setting the special election. There is no definition of 'vacancy' in this particular section (3-10-3), but the preceding section (3-10-2) discusses the procedure for replacing the governor:

"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 . . ."

I can't be sure without perusing case law, of course, but I would be willing to bet at pretty steep odds that under W. Va. law, when a U.S. senator dies the seat is vacant as of that moment by operation of law -- with no action by the governor necessary. (All bets would be off for "other disability," etc, but death is pretty cut and dry.)

Hm, I think maybe this whole argument that "the law is unclear" was created by Nate Silver which the Democratic establishment is seizing on.

More: ZeroSheep.com says I have that state convention wrong; he says that applies to only gubernatorial vacancies.

That [the provision for a state convention] looks like 3-10-2, which governs if the vacancy is in the governor's mansion. Section 3-10-3 governs U.S. Senate (plus various state offices), and section 3-10-4 governs the U.S. House. All three have differences in procedure: 3-10-2 allows for a convention in lieu of a primary; 3-10-3 requires the filing of the certificate, primary, and general election; and 3-10-4 requires a special election to be set between 30-75 days after the vacancy, with the nominees chosen a they are for governor (the convention process, presumably).

According to the article five reference in 3-10-2, primaries happen every even-numbered year only (3-5-1). So that's where the confusion/murkiness is coming from: there is no primary in 2011, so do you wait to fill the seat in 2012 as normal, or is there some other mechanism for doing it sooner? I think the plain language of the statutes is in the Democrats' favor, but there are statutory, and probably constitutional (not to mention practical political), arguments for having a special election instead of an appointment. For example, what's the point of a law requiring an election for a term with more than 2 1/2 years left, if the election cannot happen before the expiration of that term?

The more I look into this the only thing I'm certain of is that West Virginia attorneys have job security.

Well, I see it as laws in conflict, then: the statute says there must be a special election if there's a vacancy of more than two years, six months, but another section, then, makes it difficult to have one due to strict timing provisions.


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