Succession And The West Virginia Senate Seat

Last night, Nate Silver laid out the West Virginia law that governs the selection and/or election of Senator Byrd’s successor:

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 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.

This is confirmed by the West Virginia Secretary of State:

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.  The winner of that General Election fills the balance of the unexpired term.  The election for the full term will be held as scheduled regardless of the date of the vacancy.

So it would seem to be pretty clear, right ? Since Byrd died before July 3rd, West Virginia’s Governor is empowered to appoint a replacement that will serve through the end of the years, and must declare an election for November to fill the remainder of Byrd’s term.

Marc Ambinder seems to suggest not:

The only ambiguity here is when Manchin officially declares a “vacancy” in the seat; if he does so after July 3 somehow, then his hand-chosen replacement could serve through 2012.

When you read the relevant statute, though, it doesn’t appear to give the Governor the power to declare when a vacancy occurs, and the logical conclusion would seem to be that the vacancy occurred on Byrd’s death. This is something of a significant issue since it’s widely expected that Shelly Moore Caputo, who has represented West Virginia’s 2nd Congressional District since 2001, would throw her hat in the ring for the seat. Caputo would likely have a good shot a winning in what is shaping up to be a Republican year.

FILED UNDER: Campaign 2010, Congress, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds 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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. PD Shaw says:

    The Seventeenth Amendment of the U.S. Constitution may have some bearing as well:

    “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies . . .”

    There is additional provision for the state to authorize temporary appointments, but this statement here suggests to me that the Governor is obligated to recognize a vacancy when it happens and doesn’t have discretion to decide when recognizing a vacancy would be prudent.

  2. Michael Reynolds says:

    Okay, my argument would be that in this case, as in the case of most Senators, death does nothing to diminish their effectiveness in office.

    Until someone can prove that a dead Senator is performing his function and filling his office less effectively than they did when alive, I think we can consider this position no more vacant than most.

  3. […] Succession And The West Virginia Senate Seat (outsidethebeltway.com) […]

  4. Tano says:

    I think this post is mistaken on several points.

    First off, although the 2 1/2 year provision is true, it is somewhat more complicated than that. The Hotline has a good explanation of the issues involved, and the relevant WV Court cases that have addressed this issue. LINK.

    Secondly, although Capito is the best Republican hope, the Dem. Gov. Joe Manchin is known to want the seat, will almost certainly run for it, and is indisputably the most popular politician in the state, and should win easily – whether the election is this year or in 2012.

  5. Wayne says:

    Democrats have shown their tendency of not caring what the intent of the law is or was. If they can circumvent it without taking too big of a political hit they will.

  6. Michael Reynolds says:

    Wayne:

    Democrats, right.

    Extraordinary rendition, warrantless searches on US citizens, torture.

    It looks quite bipartisan to me.

  7. Wayne says:

    Re ” Extraordinary rendition, warrantless searches on US citizens, torture.”

    What does the Obama administration have to do with Republicans?

  8. Michael Reynolds says:

    Wayne:

    Jesus. Read what I wrote. Don’t just fire on automatic, learn to aim, and then squeeze off a round or two.

  9. G.A.Phillips says:

    ***Until someone can prove that a dead Senator is performing his function and filling his office less effectively than they did when alive, I think we can consider this position no more vacant than most.**** That goes double for Byrd!

  10. Wayne says:

    MR
    Jesus. Read what I wrote. Don’t just fire on automatic, learn to aim, and then squeeze off a round or two.