Ace posted this earlier about filling the vacancy of Robert Byrd’s senate seat, which made me curious enough to look into West Virginia law and see how such a vacancy is determined and subsequently filled.
The relevant statutes are easy to find, and the West Virginia Secretary of State’s website provides a summary as well. I don’t have access to West Virginia case law, though, which may answer some of the questions (so take my analysis with a grain of salt).
One thing I did find was that the timing of the vacancy — which seemed to be Ace’s main worry in his post — will not affect whether or not the governor makes an appointment, but rather how long that appointment lasts. If there is a vacancy, the governor makes an appointment to fill it. If the vacancy will be less than 2 1/2 years, the appointment is for the remainder of the term. If it’s 2 1/2 years or more, the appointment lasts until the seat is filled at the next general election: “the 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.” W. Va. Code § 3-10-3
That still leaves the question of whether the timing of the vacancy can be gamed to make the appointment be for the remainder of the term instead of until a special election is held, and Ace and I wrote back and forth while I tried to answer that.
Instead of copying and pasting from the emails that Ace quoted at that link, I’ll summarize:
1 — Based on the language of the statutes, I don’t think that a vacancy is ‘declared.’ The only reference I could find to that phrasing was in the Nate Silver article quoted by Ace in the original post (by way of Joe Weisenthal at the Business Insider). The statutes simply address the situation where there is a “vacancy occurring in the office of . . .” The governor makes appointments and/or announces the special election to fill the office. It looks to me as if the vacancy happens by operation of law when the officeholder dies, is removed from office, etc., and the governor has no role in determining at what point that happened.
2 — Although there isn’t any danger of the governor gaming the system to affect how long the appointment will be for, there is a great deal of confusion as to when or if a special election would take place. The statute governing vacancies in U.S. Senate seats requires a candidate filling period, a primary, then a general election. Although related statutes allow expedited processes — e.g., the special election must be within 30-75 days to fill an empty House seat (§ 3-10-4) – section 3-10-3 mentions only the scenario where there is the filing/primary/general.
The problem with that is, according to section 3-5-1, primaries in West Virginia only happen every other, even-numbered, year. That means the next regularly scheduled party primary is in 2012. Which in turn means that a ‘special’ election after that primary would be the same general election in which that seat would be filled anyway. So what’s the point? The Democrats are naturally making the argument that the appointment should be for the remainder of Byrd’s term since no special election could be had any sooner.
3 — There is hope for Republicans, but it’s iffy at best. When courts have to decide what a statute means, they use what are called the canons of statutory interpretation. The first of these is to follow the legislature’s intent, as determined by the plain language of the statute. When trying to parse the plain meaning fails — because legislatures are generally less coherent than a room full of crack-addled howler monkeys — a couple of other canons that the courts look to are that a statute should be read in such a way that all of its words should have meaning, and that a more specific statute overrides less specific statutes.
Here, the statute explicitly calls for an election if the remaining term is longer than 2 1/2 years. Applying the more general statute that sets the primaries every two years would make the the 2 1/2 year requirement meaningless, because unless the vacancy occurred three years out a special election could not be held. So the Republicans can make an argument that, to make the statute make sense, there has to be a way of having a special election sooner.
Is it a winner? No, but at least it’s an argument.
4 — Finally, West Virginia election law — at least this part of it — is a mess. Just in case you were still wondering
A more recent post by Ace links to a National Journal piece, which in turn cites a case involving a vacancy in a judgeship. Since the same statute applies to judges and U.S. Senators, it applies here (although the relevant time period has apparently been changed from two years to 2 1/2 since this case was decided). In this case, Robb v. Caperton, the Supreme Court of West Virginia held that the more specific statute requiring filing by a candidate by a certain date overrode the more general statute (3-10-3) requiring an election if the term was longer than two years.
Huh. That’s about opposite of what I would’ve held if I were a judge, but seems to dispose of the question here.
To sum up my summary, the statute requires a candidate filing, a primary, and a regular election in order to fill a vacant Senate seat. Another statute states that primaries happen in even-numbered years only. Assuming that Robb v. Caperton is still good law, the language in 3-10-3 about 2 1/2 years is irrelevant since Byrd died after the primary was held this year since there will not be another primary until 2012.
Which means that the governor gets to appoint someone to serve out the remaining 2 1/2 years of Byrd’s term, and West Virginia voters don’t get any say in it.
Bummer.
Update: Adding a link to an article at HotAir, to see if I can get a trackback on a post that links a post that cites me. Just because.
Also, apparently they will hold the special election at the same time as the regular election, so the appointee will serve until that election is certified, rather than January.
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