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Byrd's death triggers special election...but when?
Washington Post ^ | 06/28/2010 | Chris Cillizza

Posted on 06/28/2010 12:29:30 PM PDT by OldDeckHand

The death of West Virginia Sen. Robert Byrd (D) will trigger a fierce battle to replace him, although the timing of that race remains an open question.

West Virginia law states that if there is a Senate vacancy more than 2 1/2 years before the incumbent's term ends, a special election would be called for this November. That 2 1/2-year mark is July 3 -- four days from now.

But, as the Post's Paul Kane notes, the language of the law is unclear as it sets up a schedule that would begin the special election process after the "primary next." That means, according to Democrats, in the spring of 2012. Such a schedule would place the special election in November 2012, when Byrd's ninth term would have ended anyway.

(Excerpt) Read more at voices.washingtonpost.com ...


TOPICS: Front Page News; Government; News/Current Events; Politics/Elections; US: West Virginia
KEYWORDS: 2010; 2010electionbias; byrd; byrdseat; cultureofcorruption; selectednotelected; senate; westvirginia; wv
This probably won't work out for us, due in large part to the poorly crafted WV statute. It's a shame.
1 posted on 06/28/2010 12:29:38 PM PDT by OldDeckHand
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To: OldDeckHand

Where does the law say that the governor gets to appoint a replacement if the “primary” is going to take “too long”?

There is a definite timeframe, if the Left refuses to obey the law, then they will have an EMPTY SEAT for 2011 and 2012 and they have to live with that decision.


2 posted on 06/28/2010 12:32:40 PM PDT by a fool in paradise (I wish our president loved the US military as much as he loves Paul McCartney.)
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To: OldDeckHand

with all the BS from dems earlier letting people to vote, at least conservatives should loudly demand the right to vote as intended by the law. This would put pressure to Gov (and would weaken him in the future elections) and would make Dems look bad.

Of course, giiven the tactical incompetence of current GOP leadership, I’m not holding my breath. Libs would be organising demonstrations already and demanding special election.


3 posted on 06/28/2010 12:32:40 PM PDT by heiss
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To: OldDeckHand
Considering the pure evil Byrd supported, he's not "Eight Miles High" but rather "Eight Miles Under" and soaking in that warm, dry heat.


4 posted on 06/28/2010 12:33:30 PM PDT by newfreep (Palin/DeMint 2012 - Bolton: Secy of State)
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To: a fool in paradise
The statutes that apply, others may also but not listed here:

WEST VIRGINIA CODE

§3-10-3. Vacancies in offices of state officials, United States senators and judges. 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, judge of a circuit court or judge of a family court is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, 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.

Proclamation of any election to fill an unexpired term is made by the governor of the state and, in the case of an office to be filled by the voters of the entire state, must be published prior to the 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 the publication is each county of the state. If the election is to fill a vacancy in the office of judge of a circuit court or judge of a family court, the proclamation must be published prior to the 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 is each county in the judicial or family court circuit.

Note: Code updated with legislation passed through the 2009 4th Extraordinary Session

*******

CHAPTER 3. ELECTIONS.

ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES. §3-5-1. Time and place of holding primary elections in the year one thousand nine hundred eighty and thereafter; hours polls open. Primary elections shall be held at the voting place in each of the voting precincts in the state, for the purposes set forth in this article, on the second Tuesday in May in the year one thousand nine hundred eighty-six and in each second year thereafter.

At such election the polls shall be opened and closed at the hours provided for opening and closing the polls in a general election

5 posted on 06/28/2010 12:37:11 PM PDT by deport
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To: OldDeckHand

After the Byrd Rally I mean funeral


6 posted on 06/28/2010 12:37:58 PM PDT by al baby (Hi Mom sarc ;))
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To: newfreep

Great picture of The Byrds. Before Crosby got hog fat, Mike Clarke died from liver failure (alcohol) and Gene Clark died from drugs. McGuinn is a leftist idiot. Hillman (on the left) at least did some good country stuff and actually did some troop support concerts.


7 posted on 06/28/2010 12:39:50 PM PDT by whitedog57
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To: al baby

Headline should read : Byrd’s Death Triggers New DEATH POOL on the Howie Carr Show at 4:00.


8 posted on 06/28/2010 12:40:52 PM PDT by massgopguy (I owe everything to George Bailey)
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To: OldDeckHand

Everyone needs to demand an election this year. The primary election was in May but the filing deadline for third party and independent candidates is July 30. There is plenty of time for an election this year.


9 posted on 06/28/2010 12:41:59 PM PDT by iowamark
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To: newfreep

They look like Emo kids. LOL!


10 posted on 06/28/2010 12:44:01 PM PDT by wolfcreek (http://www.youtube.com/watch?v=Lsd7DGqVSIc)
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To: a fool in paradise
Where does the law say that the governor gets to appoint a replacement if the “primary” is going to take “too long”?

Exactly.

What is preventing the governor from calling a special primary election for sometime in August or September, to be followed by the general election in November?

-PJ

11 posted on 06/28/2010 12:45:27 PM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: a fool in paradise
That's not exactly what it says. What is says is....

§3-10-3. Vacancies in offices of state officials, United States senators and judges.

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, judge of a circuit court or judge of a family court is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, 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. Proclamation of any election to fill an unexpired term is made by the governor of the state and, in the case of an office to be filled by the voters of the entire state, must be published prior to the 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 the publication is each county of the state. If the election is to fill a vacancy in the office of judge of a circuit court or judge of a family court, the proclamation must be published prior to the 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 is each county in the judicial or family court circuit.

emphasis added.

Of course, what matters is how that statute has been interpreted by the WV Supreme Court. There is a precedent, and it's not encouraging. It may be found here. The circumstances almost exactly mirror this particular instances. The primary had passed, but there was still an upcoming general election. The Repuclicans sued to get the vacancy filled during that general election. The WV Supreme Court ruled for the Democrats and said this in the opinion...

" In view of the foregoing, we conclude that Section 7 of Article VIII, along with W. Va. Code, 3-10-3, controls the governor's right to appoint a person to fill a vacancy in the office of supreme court justice or circuit judge. The relator is not entitled to have the office filled at the November, 1994, general election.See footnote 12 We, therefore, decline to issue a writ of mandamus. "

Essentially, we're screwed.

12 posted on 06/28/2010 12:46:06 PM PDT by OldDeckHand
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To: OldDeckHand
I bet that the Governor is going to find a "special" letter from Byrd that he wrote before he died outlining his wishes that the law be changed in some way. ;-)

-PJ

13 posted on 06/28/2010 12:47:14 PM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: Political Junkie Too
"What is preventing the governor from calling a special primary election for sometime in August or September, to be followed by the general election in November?"

The Supreme Court of WV. See my post just above.

14 posted on 06/28/2010 12:47:37 PM PDT by OldDeckHand
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To: OldDeckHand

They are Democrats. They would change the law to benefit them anyway. Nothing’s illegal if you’re a Democrat.

Hey...sounds like a good bumper sticker.


15 posted on 06/28/2010 12:56:57 PM PDT by woweeitsme
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To: OldDeckHand

Why not a primary and a special election sometime after that? Plenty of time for both between now and the end of the year.


16 posted on 06/28/2010 12:59:29 PM PDT by chris_bdba
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To: OldDeckHand

Funny how the law is only ‘unclear’ when it clearly favors Republicans. What part of MORE than 2 and a half years is hard to understand? Special election in November, no brainer. If there were a Republican Governor, it wouldn’t be ‘unclear’, all the media would be proclaiming the law clearly calls for a special election.


17 posted on 06/28/2010 1:29:15 PM PDT by sportutegrl
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To: sportutegrl
"Funny how the law is only ‘unclear’ when it clearly favors Republicans. "

In the interest of factual accuracy, I think you have to know and understand the case law that has sprung from this statute. The Supreme Court of WV is pretty clear in this regard, as has been cited just a few posts up.

The statute is poorly worded, and it should have been amended after the 1994 decision to force the governor to call for a special primary before the next regularly scheduled general election. The statute doesn't do that, so the authority rests solely with the Executive, or so the Court has held.

18 posted on 06/28/2010 1:36:28 PM PDT by OldDeckHand
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To: OldDeckHand

OK, so the Gov. waits until after July 3, appoints a “placeholder” senator who won’t seek a full term, then runs for the seat himself in 2012.


19 posted on 06/28/2010 1:47:21 PM PDT by random_user_827 (Boot to command line and run chkdsk)
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To: Political Junkie Too

And to name it after him.


20 posted on 06/28/2010 2:15:43 PM PDT by skr (May God confound the enemy)
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To: OldDeckHand

It’s almost like they kept him alive just long enough to avoid an election.


21 posted on 06/28/2010 2:54:24 PM PDT by CharlesWayneCT
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To: OldDeckHand

The WV Supreme Court wouldn’t prevent the Gov. from calling a special primary and having the seat be filled at the Nov. general election, but neither will it (if it follows it’s perverse precedent) mandate that the Gov. do so, and obviously Dem Gov. Manchin is not going to want to give the GOP the chance to win the seat this November.


22 posted on 06/28/2010 3:50:49 PM PDT by AuH2ORepublican (If a politician won't protect innocent babies, what makes you think that he'll protect your rights?)
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To: OldDeckHand; AdmSmith; Berosus; bigheadfred; blueyon; Convert from ECUSA; dervish; ...
But recalling the governor can start any time, right? Thanks OldDeckHand.
23 posted on 06/28/2010 4:02:53 PM PDT by SunkenCiv ("Fools learn from experience. I prefer to learn from the experience of others." -- Otto von Bismarck)
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To: SunkenCiv
"But recalling the governor can start any time, right?"

It would depend on the Constitutions of the respective states. I'm not sure what the WV Constitution says in this regard. Not every state allows for gubernatorial recall. For example, the state I view as my home state, Ohio, does not allow for recalls of governors (or any statewide elected officials, I believe).

Didn't California have to first amend their Constitution before they recalled Grey Davis? I could be wrong.

24 posted on 06/28/2010 4:09:15 PM PDT by OldDeckHand
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To: OldDeckHand
Didn't California have to first amend their Constitution before they recalled Grey Davis? I could be wrong.

No. Initiative, referendum and recall were added to the California Constitution a century ago under Gov. Hiram Johnson.

25 posted on 06/28/2010 4:11:39 PM PDT by Publius (Unless the Constitution is followed, it is simply a piece of paper.)
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To: AuH2ORepublican
"The WV Supreme Court wouldn’t prevent the Gov. from calling a special primary "

That's an interesting point. The case I referenced really doesn't touch on the subject, and I'm not familiar with WV law enough to render an informed decision. On it's face, it would be difficult to believe they would enjoin the governor from doing such, but I really don't know.

26 posted on 06/28/2010 4:12:05 PM PDT by OldDeckHand
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To: OldDeckHand
That was my point. They're saying that they missed the primary, and are pushing off the special election until the next primary two years later. That is outrageous.

The governor was just reelected and serves until 2013, so he doesn't care. Let's see if the people of West Virginia speak up about this.

-PJ

27 posted on 06/28/2010 4:18:11 PM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: Political Junkie Too
"That was my point. They're saying that they missed the primary, and are pushing off the special election until the next primary two years later. That is outrageous."

It's even crazier. They are going to hold two simultaneous elections, for the same seat. It's nuts.

WV SecState's Statement

"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.


28 posted on 06/28/2010 4:59:26 PM PDT by OldDeckHand
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To: OldDeckHand
Other Democrat election "specials:"

New Jersey: Democrats argue that Robert Torricelli, who stepped aside because he was losing in the polls, be allowed to be replaced in the final weeks with someone with more of a chance to win, in the name of giving the voters a competitive election. The courts agree.

Hawaii: Democrats argue that deceased House incumbant Patsy Mink be allowed to remain on the ballot despite having died, because she has name recognition for voters who want to still vote Democrat. A vote for Mink will be a vote for her ballot replacement. The courts agree.

Missouri: Democrats argue that the deceased Senate candidate Mel Carnahan be allowed to remain on the ballot, and that a vote for him is a vote for the Governor to appoint a successor (his wife), should his name win. The courts agree.

Massachusetts: Democrats argue that the Governor should be allowed to appoint an interim Senator to fill the seat vacated by the deceased Ted Kennedy, despite the law that leaves the seat vacant until a special election. The courts agree.

-PJ

29 posted on 06/28/2010 5:08:31 PM PDT by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: OldDeckHand

I bet the people of WV won’t care at all how it’s done so long as a Byrd clone is put in that seat.


30 posted on 06/28/2010 9:18:40 PM PDT by Theodore R.
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