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Archive of entries posted on June 2010

The West Virginia Secretary of State Refuses to Hold a Special Election in 2010

           The West Virginia Secretary of State has taken the position that the special election to replace Senator Byrd will not occur until November 2012.  She relies on Robb v. Caperton, a 1994 West Virginia Supreme Court case which applied the same vacancy statute in the context of a judicial vacancy.              Robb does provide [...]

When Should West Virginia Hold a Special Election to Replace Senator Byrd?

            As mentioned in my last post, I think that the Governor of West Virginia is likely obligated to call a special election to fill the vacancy caused by Senator Byrd’s death.  But when is such an election to take place?  The West Virginia statute does not directly address when the special election is to [...]

Is a Special Election Required to Fill the Byrd Vacancy?

           Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in U.S. history, passed away today.  R.I.P.              The vacancy created by Byrd’s death will be filled by the Governor under § 3-10-3 of the West Virginia Code.  This statute provides that if the unexpired term of certain vacant offices, including that of U.S. [...]

The Tillmans on Shall and May

            Nora and Seth Tillman have published this fragment on the constitutional meaning of  “shall” and “may.”   They contend that in 18th Century America the word “shall” was used more often in a non-obligatory sense, ie, to indicate futurity as we would use the word “will,” than it would be today.  This may be important [...]

Illinois’s Unconstitutional Procedure for Filling the Obama Vacancy

An interesting Seventh Circuit opinion earlier this month considers the constitutionality of Illinois’s procedure for filling the Senate seat vacated by Barack Obama after his presidential election.  (hat tip, Election Law Blog).  Among other things, the court confirms my view that the term of Senator Burris (who was appointed by then-Governor Blagojevich as a temporary replacement [...]

Roll Call on OCE Referral

          Today Roll Call Columnist Simon Davidson discusses the risks that a private party faces in turning over information to the Office of Congressional Ethics.  He mentions my post last week questioning whether OCE has the authority to refer evidence to the Justice Department as it did with regard to the PMA investigation.                Roll [...]

Kagan’s White House Records and the Presidential Records Act

           In preparation for the confirmation hearings for Supreme Court nominee Elena Kagan, the Senate Judiciary Committee has requested that the National Archivist produce records of Kagan’s service in the Clinton White House, where she served first as Associate White House Counsel and then as Deputy Assistant to the President for Domestic Policy.   It appears [...]