West Virginia Sec. of State: No Election For Byrd’s Seat Until 2012

Vivian Ronay

West Virginia Secretary of State Natalie Tennant (D) has announced that there will not be an election for the Senate seat formerly held by the late Democratic Sen. Robert Byrd until 2012 — with Gov. Joe Manchin (D) set to make an appointment to serve until that time.

West Virginia’s state law was ambiguous, even confusing, on this whole subject. In her remarks, Tennant even referred to it as “an interesting document.” If the vacancy occurs with less than two years and six months in the term (the key date being this coming July 3), then the law doesn’t require any further special election until Byrd’s term would have come up anyway, at the regular election in 2012. So it might seem as if there should be a special election this year.

But here’s the catch: The filing period and primaries already passed us by this year. With the state apparently not required to set up a new special election filing, that means there will not be another election until the next filing period in 2012. And when that election does get held, there will in fact be two elections – one for the regular term that would have come up in 2012, and another for the final five weeks of Byrd’s term, with the winner replacing the appointed Senator.Here is Tennant’s full statement:

“Hello I am West Virginia Secretary of State Natalie Tennant.

“This is a sad time for our state. I want to express my condolences to Senator Byrd’s family. I also want to express my condolences to the people of West Virginia.

“We together have lost one of our own. We have lost a leader, we have lost a legend, and we have lost a part of who we are.

“Senator Byrd was a special man who had a special place in our hearts and in our state.

“I would have preferred to have allowed a little longer grieving and mourning period before the question of who would replace him and how it would be done were asked. Out of respect for Senator Byrd, and his many accomplishments and wonderful service to this state, I wanted this office to mourn his loss and give West Virginians time to pay tribute. He is owed that much.

“But I have a duty and that duty is to oversee and lay out the process that will take place according to West Virginia State Code.

“The State Code is an interesting document. Within Chapter 3 that focuses on elections, there are several sections that determine how vacancies are filled.

“Section 3-10-3 states that for terms with more than two years and six months remaining, such as this one with Senator Byrd, the Governor will appoint a replacement who serves the unexpired term until a successor has been elected.

“But that election will not be the 2010 General election. Part of this same section of code, requires the candidate to have filed during the filing period. That filing period has already passed. There was a legal case in 1994 decided by the West Virginia Supreme Court of Appeals that up held that position of requiring candidates to file during the filing period.

“That means the election for the unexpired term would be the next election cycle which would take place in 2012. Candidates will be nominated in the primary and elected in the general of 2012.

“That brings up an interesting situation. Because Senator Byrd’s seat would have been up for re-election in 2012, both the position for the unexpired term and full term will be on the ballot at the same time but are separate races. In fact it will be two separate elections. With the unexpired race being a special election because it would otherwise not have been on the ballot.

“The winner of the unexpired term would serve out the final five weeks or so until the new term of Congress starts in January of 2013. Had Senator Byrd’s term not run out in 2012 there would not have been this unique situation. It would have just been for the unexpired term.

“Once again this is a time of sadness and we should take pause to honor someone who has given so much to our great state of West Virginia.”

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