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June 28, 2010

More Byrd: Previous Case on Filling Vacancies May Support Democrats Keeping Unelected Appointee In Seat

Ouch.


This as to do with ZeroSheep's point: One part of the law specifies the need for a special election. Another part of the law, though, specifies timing requirements that seem to put off a special election... until the actual regularly-scheduled election.

From cinyc:

There is settled case law on the point. In '94, Kanawha Co. Circuit Court Judge John Hey resigned in April. A local GOP party chairman sued then-Gov. Gaston Caperton (D) to try and compel a special election for the following Nov. The state Supreme Court, in Robb v. Caperton, ruled against the local party chairman and said Caperton's appointee would serve until the '96 election, when the office would have come up for election anyway.

With an election set for more than 2 years away, Manchin has the chance to pick a successor to hold Byrd's seat. 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.

Dusty posts this language, though:

(b) Except as otherwise provided in article ten of this chapter, if any vacancy occurs in a partisan office or position other than political party executive committee, which creates an unexpired term for a position which would not otherwise appear on the ballot in the general election, and the vacancy occurs after the close of candidate filing for the primary election but not later than eighty-four days before the general election, a nominee of each political party may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days before the general election. Appointments shall be filed in the same manner as provided in subsection (a) of this section, except that the filing fee shall be paid before the appointment is complete.

He then comments:

In (b), it provides for cases where the standard procedure described in 3-10-3 does not apply. Some might point to the "Except as otherwise provided in article ten of this chapter" saying this supercedes the this provision (b) and it must go through all the standard procedures of an election, but the WV Consitution makes it pretty clear the vacancy must be filled by via the next General Election, which is 2010. This 3-5-19 provision clears the way to the very reasonable, (shortest reasonable) cutoff time of 84 days prior to the next General Election.

An elected Senator for two years is much better than one appointed for 2.5 years, and isn't that the purpose for having all these provisions to get an elected official in a vacant position?

cinyc counter-points that section ten is the one about the need for the primary, etc., and is the section relied upon to resolve the previous case about a judgeship vacancy.


I don't know. I kinda want that seat contested, obviously.


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posted by Ace at 04:01 PM

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