Timing of West Virginia's next gubernatorial election is politically fraught

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December 29, 2010

By Eileen McGuire-Mahony

Robert Bryd's death, which ended the Senate's longest tenure last year, has, to date triggered two electoral battles. First, when Democratic Governor Joe Manchin announced his intention to seek to fill the remainder of Bryd's term, the ensuing details of a special election for the Senate seat dragged out. Now, with Manchin set to join the Senate and Earl Ray Tomblin, a fellow Democrat, acting as the appointed Governor, West Virginia must now schedule a special gubernatorial election.[1]

Weighing in on his old office, Manchin prefers keeping Tomblin in office until December 31, 2012, when the term would expire anyway. Elsewhere in the state's politics, those who would like the office themselves prefer a 2011 election. Such a move would deny Tomblin precious time to consolidate his base and build up a track record before he begins campaigning.

Both Rick Thompson, Speaker of the West Virginia House of Delegates, and Glen Gainer III, the state's Auditor, have called for a 2011 election. Gainer went a step further, filing a brief with the state Supreme Court to argue for a special election next year. At the heart of Gainer's argument is a claim that the Constitution, which calls for special elections when a vacancy is created less than three years into a four year term, overrides state statute, which has no provision for moving the next scheduled gubernatorial election up.[2]

Additional lawsuits hold that Tomblin, by serving as Senate President and Governor, is creating a second Constitutional violation. Thornton Cooper, of South Charleston, filing as a private citizen, and Citizen Action Group, both brought suit.[3] The cases have now been consolidated. On Monday, the deadline for interested parties to file briefs in the suit passed. One such brief came from Secretary of State Natalie Tennant, thought to be a potential entrant into the governor's race, whenever it is held. Tennant stressed that she lacks the authority to call an election in 2011 and asked that, in the event a special election is called, her office be given a minimum of 90 days to notice to prepare.

Also pushing for a 2011 date are several of West Virginia's unions, led by the West Virginia Education Association and the state's AFL-CIO. In amicus briefs, both groups argue that Tomblin's dual role leading the Legislative and Executive branches of the government violates Constitutionally required separation of powers. They also point to Tomblin's electoral margins when he was last voted into office as a legislator and claim it means West Virginia essentially has a government whom half the state never voted for.[4]

The issue rests, for now, with the West Virginia Supreme Court. Its five members will decide on hearing the case at all and will schedule oral arguments if they choose to accept the case. Ultimately, the COurt could order the state legislature, or Tomblin himself, to schedule an election. Should that happen, the state will join a sparse crowd of states holding gubernatorial elections in 2011.