Day: June 28, 2010

            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 West Virginia legislature provided for special elections only when a vacancy occurs more than two years and six months before the end of a term is that it did not believe it worthwhile to hold a special election to fill shorter periods of time.  So either the legislature believed that a special election could be held at some time other than the general election date, or it believed that the special election could be held on the next general election date (so that there would be more than two years left in the Senate term).  Interpreting the statute to make it impossible to hold a Senate special election until the November two months before the original term expires seems inconsistent with the legislative intent. 

            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.  West Virginia voters may plausibly contend that state law requires a special election to be held this November, or if not then as soon as possible.  They may also raise the federal constitutional issue not decided in the Illinois case, ie., whether an unreasonable delay in holding a special election to fill a Senate vacancy violates the language and purpose of the Seventeenth Amendment.

           Senator Robert Byrd (D-W.Va.), the longest serving Member of Congress in U.S. history, passed away today.  R.I.P. 

            The vacancy created by Byrd’s death will be filled by the Governor under § 3-10-3 of the West Virginia Code.  This statute provides that if the unexpired term of certain vacant offices, including that of U.S. Senator, is less than two years and six months, the appointment will be for the remainder of the unexpired term.  It should be noted that this provision raises some serious constitutional questions under the Seventeenth Amendment, particularly in light of the Seventh Circuit’s recent decision regarding the Senate vacancy in Illinois.  According to the court, the Seventeenth Amendment requires that “every time that a vacancy happens in the state’s senate delegation, the state must hold an election in which the people elect a permanent replacement to fill the vacant seat [and] the executive officer of the state must issue a writ of election that includes a date for such an election to take place.”  Under West Virginia law, however, neither of these requirements will be met whenever the vacancy occurs less than two years and six months prior to the end of the original term. 

            This issue may not directly arise in the present situation.  As of today, there are two years, six months and five days of Byrd’s unexpired term remaining.  Thus, it would seem that under West Virginia law a special election is required. 

            It is possible, however, that the Governor could take a contrary position.  First, the Governor might take the position that the vacancy does not “occur” until he receives formal notice from the Senate.  Were the Senate to fail to give notice of the vacancy this week, the Governor might argue that the unexpired term is less than that required to trigger a special election.  Second, the Governor might argue that the vacancy continues to occur so long as the office remains vacant, so that the length of the unexpired term is measured by whenever the temporary appointment is made.  Third, (closely related to but somewhat stronger than the second), the Governor could argue that the “unexpired term” referred to in the statute is measured by the temporary appointment, not by the vacancy.  Under either the second or third points, no special election would be required if the Governor fails to fill the vacancy until after July 3 (this Saturday). 

            I don’t know what West Virginia law may say about these points, but there are two good reasons for regarding them with skepticism.  First, it seems unlikely that the legislature intended to leave it up to the Governor’s discretion when the clock starts on the unexpired term.  (It is more likely that the legislature would have started the clock upon official notice from the Senate, but in that case one would expect that it would have said so explicitly).  This is particularly so since the legislature did not require the Governor to fill the vacancy within a specific period of time, raising the possibility that the Governor could wait weeks or even months to fill a vacancy in order to avoid a special election. 

            Second, and more importantly, any interpretation that prevents a special election from occurring at all would raise the serious constitutional questions previously mentioned.  Such an interpretation would fly in the face of “the Seventeenth Amendment’s primary objective of guaranteeing that senators are selected by the people of the states in popular elections,” as the Seventh Circuit put it.  Thus, the doctrine of constitutional avoidance strongly counsels in favor of an interpretation allowing a special election to take place. 

            For these reasons I conclude that a special election to fill Byrd’s seat is likely required.  I will turn to the question of when such a special election should occur in another post.