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 take place. Instead, it states that for certain offices, including U.S. Senator, a temporary 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.”
It is apparently inferred from this language that the special election is to take place on the date of a general election. This, at least, seems to be the position of the West Virginia Secretary of State, whose website states that in the event of a Senate vacancy: “[T]he 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.”
It is not exactly clear what this means in the current context. In West Virginia, the deadline for filing to compete in this year’s congressional primary was January 30, and the congressional primaries were held on May 11. It may be argued, therefore, that it is too late for anyone to run for the vacant Senate seat in this year’s general election. Under this interpretation, the special election would not be held until November 2012, in which case the winner would serve only the remaining two months of Byrd’s term.
On the other hand, it is hard to see how this interpretation could be squared with any sensible legislative policy. Presumably the reason why the
To make matters more confusing, the Secretary of State’s website also contains the following: “Vacancies in the offices of Secretary of State, State Treasurer, State Auditor, Attorney General, and Commissioner of Agriculture are filled by appointment until the next election that is more than two years and six months following the vacancy.” Vacancies in these offices are covered by the exact same language as governs Senate vacancies, so it hard to see how these offices could be treated differently than a Senate seat. It is also hard to see how the Secretary’s statement can be squared either with the statutory language or with the principle, also stated on the website, that “[t]he 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.”
In any event, if the Governor and/or Secretary of State refuse to hold a special election for Byrd’s seat prior to November 2012, it seems very likely that there will be a legal challenge.