W. Virginia AG opinion reveals current law on special elections is unclear

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July 9, 2010

By Kyle Maichle

CHARLESTON, West Virginia: The July 8, 2010, opinion issued from Attorney General Darrell McGraw revealed problems in the state's law governing special elections. This comes after the Attorney General said that a special election to fill Robert Byrd's U.S. Senate seat must be held as soon as possible.

The eight page opinion from the state's top law enforcement official found that West Virginia Statute 3-10-1 which governs special elections has an ambiguity towards elected offices that have terms longer than four years. The opinion stated that current law does not have a clear distinction between filling U.S. Senate vacancies and some offices in West Virginia's judiciary that have eight and twelve year terms. McGraw emphasized in his opinion that the state's law towards filling U.S. Senate vacancies must be consistent with the 17th Amendment of the U.S. Constitution. The 17th Amendment deals with the direct election of U.S. Senators[1].

McGraw also mentioned in his opinion that incorrect reasoning was used when Secretary of State Natalie Tennant issued her opinion. The reasoning in question was the Robb v. Capterton ruling which challenged the state's law on special elections in 1994. McGraw stated that the Robb case had no direct relation to a U.S. Senate vacancy citing the lawsuit involved a circuit court vacancy[2].

Also, a clause that requires candidates to wait until the next primary election in 2012 to run for the vacant seat was a cause of concern on McGraw's part. The Attorney General stated that a special election in 2012 creates a situation that the winner of the election may have to run in three successive elections just to win the seat permanently in one year. With Byrd's term expiring 2012, McGraw called the situation: "while perhaps not absurd, certainly awkward and unintended."[2]

Governor Joe Manchin has made no announcement if he would call the Legislature into special session to change the law in order to hold a special election on the November 2010 ballot[3].

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