Replacing Robert Byrd

[King]

If Byrd somehow makes it to 2012, Governor Joe Manchin is term-limited that year and it seems obvious replacement.

But if he doesn't, which seems more likely, Manchin will have to appoint a successor.  He could appoint himself--which is usually a sure way to lose the election.  He could appoint a tool that won't run for re-election--similar to Ted Kaufman in Delaware.  Or he could appoint a real successor.

What should Gov. Manchin do?

[Dan the Roman]

He will probably do nothing until July 3rd in any case. Then he can appoint a replacement who will serve until 2013.

[I spent the winter writing songs about getting better]

He will probably do nothing until July 3rd in any case. Then he can appoint a replacement who will serve until 2013.

Yep, most likely appoint a placeholder and then run for the seat himself in 2012.

[JohnnyLongtorso]

I believe it's generally expected that he'd appoint the chair of the WV Democratic Party to serve as a placeholder.

[Southern Senator North Carolina Yankee]

He will probably do nothing until July 3rd in any case. Then he can appoint a replacement who will serve until 2013.

I beleive it goes by the date of the vacancy not the date of the appointment.


Either way, this way to early to speculate, and somewhat innappropriate.

[ajc0918]

Was this thread the result of him being hospitalized?

Or is it just a coincidence?

http://www.cnn.com/2010/POLITICS/06/27/senate.byrd.hospitalized/index.html?hpt=T2

[Lunar]

Was this thread the result of him being hospitalized?

Y

[Dan the Roman]

He will probably do nothing until July 3rd in any case. Then he can appoint a replacement who will serve until 2013.

I beleive it goes by the date of the vacancy not the date of the appointment.


Either way, this way to early to speculate, and somewhat innappropriate.

There was a Supreme Court case back in 1994 that says the vaccancy must be declared, it does not just exist in fact. So if Manchin is on vacation..... well then its just like Roger Wicker in 2008.

[I spent the winter writing songs about getting better]

For precedent see my state for the first half of 2009 with no second Senator but no vacancy.

[Mr. Morden]

I wonder if the vote on financial reform will be delayed until after Manchin has named Byrd's successor and he's been sworn in.  The cloture vote margin on that is expected to be razor thin.

[Sam Spade]

He will probably do nothing until July 3rd in any case. Then he can appoint a replacement who will serve until 2013.

I beleive it goes by the date of the vacancy not the date of the appointment.


Either way, this way to early to speculate, and somewhat innappropriate.

There was a Supreme Court case back in 1994 that says the vaccancy must be declared, it does not just exist in fact. So if Manchin is on vacation..... well then its just like Roger Wicker in 2008.

Can you point me to the SC case that states this proposition?

Without knowing more, it seems to me that the question of when a "vacancy" occurs in a office is a question decided by state law, usually within said vacancy statute itself.

Of course, here the statute in question is entirely unclear on that point, so who knows...

[JohnnyLongtorso]

I smell lawsuit!

[Lunar]

West Virginia election law murky on Robert Byrd succession

Read more: http://www.politico.com/news/stories/0610/39092.html#ixzz0s9SOrCf0

[Small Business Owner of Any Repute]

This could get ugly if Democrats try to push this election off until 2012. I'd be very nervous about the backlash.

[Holmes]

It's July 3rd, right? Then after that, the Senator will last until 2012? Then it shouldn't be so hard to come up with legitimate excuses to wait, considering it's in six days. Funeral, trying to pick "the right person"... he'll appoint someone after the 3rd, there'll be lawsuits, it'll be a grand time.

[Amenhotep Bakari-Sellers]

Its going to be Nick Rahall and Shelly Moore Capito if an election should occur.

[Small Business Owner of Any Repute]

It's July 3rd, right? Then after that, the Senator will last until 2012? Then it shouldn't be so hard to come up with legitimate excuses to wait, considering it's in six days. Funeral, trying to pick "the right person"... he'll appoint someone after the 3rd, there'll be lawsuits, it'll be a grand time.

The appointment is not the issue -- he could appoint someone in October and still have the election in November. The issue is the simple determination of when the seat is vacant, and it's hard to come up with a legitimate way to say, "oh no, that's still Bob Byrd in that seat. No vacancy there."

[True Federalist (진정한 연방 주의자)]

West Virginia election law murky on Robert Byrd succession

Read more: http://www.politico.com/news/stories/0610/39092.html#ixzz0s9SOrCf0

There is one error in that article.  Yes it is after the primary date, but WV law provides in such a case to have the parties decide their candidates by a convention.  So assuming that there is a special election, which I believe should be the case, it will definitely happen in 2012.

[True Federalist (진정한 연방 주의자)]

Also the section of law that controls how Byrd's vacancy is filled makes reference to the law that controls how a gubernatorial vacancy is filled, and that law states:

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I'd say that makes it clear that under WV law, a vacancy occurs at the time of death.

[nkpatel1279]

How about appointing Alan Mollohan(WV-1) as a caretaker. He is leaving the US House Seat after his term expires.  He can serve in the US Senate from now to an election is held.

[Torie]

You must be logged in to read this quote.

A question that occurs to me, is whether or not when this law was written, did WV have an earlier primary date than it did now. If it did, than 2012 makes sense, since the 30 month rule when the law was written accommodated the primary schedule, and now it does not, rendering the 30 month rule meaningless if the primary filing date has already closed. However, if the primary schedule was the same, than the 30 month rule makes no sense (it is an effective nullity if the primary period has already closed at the time of vacancy), unless it tacitly assumes a special election will be called.

If the latter is the case, it will make an interesting lawsuit, as to how to try to give the 30 month rule meaning.

Chris Cillizza at WAPO manages to write a thoroughly confusing and incoherent piece on the subject as his contribution to the confusion. Yes the election should be held this November, except that it won't be maybe or something. Thanks Chris.


Addendum: And below  is the language from the WV Constitution that does indeed contemplate calling a special election, where the 30 month rule is in play. So I think we will see a special election this November in all probability. The Courts will not look fondly on the governor playing games in declaring a vacancy or sitting on this hands in calling a special election, in order to frustrate the intent of the law, and render it moot. His declaring a vacancy and calling for a special election would and should be held to be a mere ministerial rather than discretionary act. In other words, he cannot use his discretion to delay the election for two years via sitting on his hands. Does this make sense?

" Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals, or in any office created or made elective, to be filled by the voters of the entire state, or judge of a circuit court, shall be filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, or a judge of the circuit court, be for less than two years; or if the unexpired term of any other office named in this section be for a period of less than two years and six months, the appointment to fill the vacancy shall be for the unexpired term. If the unexpired term of any office be for a longer period than above specified, 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. Proclamation of any election to fill an unexpired term shall be made by the governor of the state, and, in the case of an office to be filled by the voters of the entire state, shall be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county of the state. If the election be to fill a vacancy in the office of judge of a circuit court, the proclamation shall be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in the judicial circuit." (Emphasis added.)

[I spent the winter writing songs about getting better]

Mollohan makes sense as a caretaker.

It was almost a month before Paul Kirk was replaced as the caretaker for Ted Kennedy's seat FYI.

[Meeker]

The WV Secretary of State is going to release some sort of statement this afternoon outlining the procedures for filling the vacancy. Of course if someone doesn't like their interpretation of the law then they could sue.

This article makes it seem pretty clear there will be no special election until 2012 though: http://hotlineoncall.nationaljournal.com/archives/2010/06/filling_robert.php

[Torie]

The WV Secretary of State is going to release some sort of statement this afternoon outlining the procedures for filling the vacancy. Of course if someone doesn't like their interpretation of the law then they could sue.

This article makes it seem pretty clear there will be no special election until 2012 though: http://hotlineoncall.nationaljournal.com/archives/2010/06/filling_robert.php

Indeed, per a WV high court ruling:

"There is settled case law on the point. In '94, Kanawha Co. Circuit Court Judge John Hey resigned in April. A local GOP party chairman sued then-Gov. Gaston Caperton (D) to try and compel a special election for the following Nov. The state Supreme Court, in Robb v. Caperton, ruled against the local party chairman and said Caperton's appointee would serve until the '96 election, when the office would have come up for election anyway."

So, apparently the court decided the governor did have the discretion to stall calling a Special Election. I don't agree with the decision, and indeed if on that court, would vote to reverse, but I am not, and it most probably will not be reversed. Good find Meeker.

[King]

It's July 3rd, right? Then after that, the Senator will last until 2012? Then it shouldn't be so hard to come up with legitimate excuses to wait, considering it's in six days. Funeral, trying to pick "the right person"... he'll appoint someone after the 3rd, there'll be lawsuits, it'll be a grand time.

The appointment is not the issue -- he could appoint someone in October and still have the election in November. The issue is the simple determination of when the seat is vacant, and it's hard to come up with a legitimate way to say, "oh no, that's still Bob Byrd in that seat. No vacancy there."

I got it:

"Byrd doesn't lose his seat until he's buried.  Funeral scheduled for July 4th because he was a real patriot."