This ruling does follow the West Virginia statute. Sorry to say it, but the language is pretty clear. I actually thought that it was to Manchin’s advantage to have a special election this year and that he might try to figure out a way to get that done. I think that he would have been hard to beat in 2010, 2012 is a long time and lots of things can happen along the way.
If it’s by appointment, then someone should look at what the Democrats wanted to pull (DID PULL) in Massachussets.
Otherwise, West Virginians should push for no representation at all, and then stop paying taxes until 2012.
“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.”
When I first read this statute, I agreed with your conclusion that the election couldn’t occur until 2012. However, I don’t anymore for this reason: It turns out that the filing dates for Democrats and Republican candidates — who are selected in primaries — is long gone. HOWEVER, the dates for filing for certificates of candidacy by independent and write-in candidates is STILL OPEN. In effect, their “primary” is simply their filing for a certificate of candidacy.
I suspect that if someone — anyone — filed for a certificate of candidacy as a write-in candidate, that he’d have a good case for a 2010 election. What if this caused an atty. general opinion that yes, it’s a poorly written statute that seems to assume a candidate can only be chosen in a primary and therefore be a Democrat or Republican and since a write-in candidate has filed for the office in a timely manner, then we have to have a 2010 election. It’s a flawed statute.
There was a WV Supreme Court opinion in the 90s that sort of addressed the subject BUT it was filed by a Republican and therefore the issue did not come up about write-in and independent candidates.