No Election For Byrd’s Senate Seat Until 2012

Thanks to a rather odd interpretation of West Virginia law, there won't be an election to fill Robert Byrd's Senate seat until November, 2012.

The West Virginia Secretary of State has just issued a statement on how Robert Byrd’s Senate seat will be filled, and seems bound to stir up controversy:

“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.

“That brings up an interesting situation. Because Senator Byrd’s seat would have been up for re-election in 2012, both the position for the unexpired term and full term will be on the ballot at the same time but are separate races. In fact it will be two separate elections. With the unexpired race being a special election because it would otherwise not have been on the ballot.

“The winner of the unexpired term would serve out the final five weeks or so until the new term of Congress starts in January of 2013. Had Senator Byrd’s term not run out in 2012 there would not have been this unique situation. It would have just been for the unexpired term.

Chris Cillizza tries to decipher this:

What Tennant’s ruling means is that there will be two election for the Senate in November 2012. One will be a special election for the five week (or so) unexpired term of Byrd while the other will be for a full six year term since Byrd was due to stand for re-election in 2012 anyway

Basically what this means is the Governor of West Virginia, Democrat Joe Manchin, will be able to appoint a place holder to fill the seat who will serve from now until after Election Day 2012, at which point the winner of the “Special Election” for Byrd’s seat will become Senator and will hold that seat until January 3, 2013 when the winner of the General Election also held on Election Day 2012 will take office.

It is widely speculated that Manchin himself will be a candidate for Byrd’s seat.

Sound confusing ? Yea, well it is.

I don’t purport to be an expert in West Virginia elections law, but the idea that you cannot hold a Special Election in 2010 because nobody filed to run by the time the filing deadline passed seems utterly nonsensical when you take into account the fact that at the time the filing deadline passed, Senator Byrd was still alive so there was no Special Election to file for.

Now, it’s entirely possible that the WV Secretary of State is correct in this interpretation of the law, which would seem to be a good argument for changing it. In either case, this seems like situation where a Court needs to at least been consulted on what the law actually is, because this just doesn’t make any logical sense.

FILED UNDER: 2010 Election, 2012 Election, Congress, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. PD Shaw says:

    I believe there is currently a lawsuit in Illinois concerning when Obama’s Senate replacement, Roland Burris’ seat expires. As I understand it, Illinois may have to have two elections for the seat this year: the first to fill the seat between the November election and January and the second to fill a full term, beginning in January. I’ve only read a summary, which emphasized the interplay of the U.S. Constitution and strict interpretation of the terminology in the state statute authorizing a temporary replacement. Du’kno; seems like a strange, unexplored area of jurisprudence.

  2. PD Shaw says:
  3. tom p says:

    ***this seems like situation where a Court needs to at least been consulted on what the law actually is, because this just doesn’t make any logical sense.****

    Doug, I guess you have forgotten that “the law is an ass.”

  4. wr says:

    You know who else refused to allow an election for Byrd’s seat until 2012? Hitler. I’m just saying…

  5. Tano says:

    “In either case, this seems like situation where a Court needs to at least been consulted on what the law actually is, because this just doesn’t make any logical sense.”

    Do you even read your own comment section?

    I posted a link to a Hotline article this morning which laid all this out, and made mention of the WV Supreme Court case that mandated the interpretation that the SoS took.

    Heck, do you even read the quotes you post? That ruling by the Court is mentioned in the quote you provide above.

  6. Wayne says:

    Thing may have change in WV election laws since 1994. Maybe they will look at New Jersey where a Primary winner was taken off the ballet and a new candidate name was place on the ballet by the Democrat party. They can use the “it is the will of the voters not the law that matters” argument.

    In this case they can do both. Follow all the election laws and take in the will of the voters. There is no reason that can’t have a special primary in this case.