Filling Byrd’s Senate Seat

The passing of Robert Byrd (D-WV) leaves West Virginians with the task of replacing a man who has represented the state in the U.S. Senate since 1959. Jonathan Allen of Politico writes on the procedure for filling the seat and apparentlythere is some ambiguity in the state election law statutes on the matter:

West Virginia Gov. Joe Manchin, a Democrat, has the power to appoint a successor to Byrd – but, because Byrd died at the beginning of this week and not the end, it's not entirely clear whether that person will be a short-timer in the Senate or serve more than two years.

Under West Virginia election law, Manchin surely would have been able to appoint someone to fill the entire remainder of Byrd's term had Byrd died after July 3 – or with less than 30 months left to go on a term that expires Jan. 3, 2013. But with more than 30 months left of an "unexpired term," the law stipulates that he tap an interim successor until an election can be held.

That law, however, isn't clear on two points within the construct: First, the law is silent on when, exactly, a vacancy occurs – at the time of death, when the Senate informs the state or when the governor declares it? – and the law for calling a special election is written in a way that suggests that it couldn't be held until the date of the next regularly scheduled election in 2012.

Here's the relevant wording from the West Virginia code: "If the unexpired term of any office is for a longer period than [30 months], the appointment is 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."

West Virginia held this year's primary election in May and does not have another regularly scheduled election until 2012.

Please click here for the West Virginia statute (§3-10-3) from the Secretary of State's website.

Could the state hold a primary and then have a special election in November? States routinely throw together special elections in less time. What if both the Democrats and Republicans settled on candidates and no primary was even needed?

The Washington Post has also written on the matter.