Still More on the Byrd Vacancy

State officials in West Virginia disagree as to when state law permits or requires a special election to fill a vacancy in the office of U.S. Senator.  The Secretary of State believes that current law requires the election to be held in November 2012, while the Attorney General believes that the law permits, if not requires, the election to be held in November 2010.   

            In light of this disagreement, the Governor has proposed legislation that would “clarify” state law with regard to vacancies.  Specifically, with respect to Senate vacancies, the proposed legislation would require the Governor to proclaim a special election whenever the unexpired term equals or exceeds two years and six months.  If the vacancy occurs one hundred and twenty days or more before the next general election, the Governor would be required to set the special election on the general election date.  If the vacancy occurs less than one hundred and twenty days before the special election, the Governor can set any special election date, as long as it is not within sixty days, and no more than one year from, the occurrence of the vacancy.  In addition, the Governor is required to set a special primary election, which may not be within sixty days of the special election. 

In the meantime, the Governor has named a temporary appointee for the vacant office.  (Although I have not seen the formal certificate of appointment, the Governor presumably has executed or will execute such a certificate by next week, when the appointee’s credentials are apparently to be presented to the Senate). 

These machinations raise a couple of interesting questions.  First, can the Governor properly appoint a temporary Senator before issuing a writ of election setting the date of the special election?  The language of the Seventeenth Amendment arguably implies that the writ of election comes first, a reading suggested by the following language from the Seventh Circuit’s discussion of the Obama vacancy in Illinois: “The principal clause [of the Seventeenth Amendment] describes a chain of events: when a vacancy happens, the state executive issues a writ of election, which calls for an election in which the people will fill the vacancy. The proviso qualifies this chain of events by permitting an appointee to intercede temporarily between the start of the vacancy and the election that permanently fills that vacancy.” 

Second, if the Governor makes an appointment in accordance with state law, can the legislature subsequently change the date on which the special election is to occur?  Extremely alert readers will recall that this issue arose in connection with the Obama vacancy.  After Governor Blajojevich appointed Roland Burris to fill the vacancy, the Illinois legislature discussed changing the law to require a special election to be held earlier than the date provided by existing law.  Burris argued that such a change would be unconstitutional and threatened to fight it in court.  As I discussed at the time, a post-appointment change in the election date may be unprecedented and presents serious constitutional issues.

If the West Virginia legislature were to adopt the law proposed by the Governor, the Governor would be required to set a special primary election at the very beginning of September, and the special election would be held on the general election date in November.  This is on the assumption that the Byrd vacancy occurred on June 28 (the date of his death), which would be more than one hundred and twenty days before the general election (127 by my count).  Of course, it is arguable that this result is the same as was required under pre-existing law, in which case the second constitutional issue would not arise.

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