Who would replace Manchin?

A strong bench vs. a weak bench (4.00 / 1)

The list of names on the Democratic side vs. the Republican side is very telling of the depth of the West Virginia Democrats versus the weakness of the West Virginia Republicans. I've long suspected that part of that is due to the grip that Shelley Moore Capito has on the party. She makes certain no potential rivals come up the GOP ranks that could be a challenger to her if she ever decides to run for another office and how the pro-choice, health-care reform voting Capito has avoided a primary challenge. It's not the tea party's Republican Party. The West Virginia GOP is Shelley Moore Capito's machine. But that control by her also has weakened the party so that it is not growing in registered voters and has no serious candidate to run for senate.

When a man embarks upon a crime, he is morally guilty of any other crime which may spring from it. Sherlock Holmes.

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by: Carnacki @ Mon Jul 26, 2010 at 12:36:09 PM UTC

Forgot Speaker Thompson (4.00 / 1)

 as he is actively campaigning for the post of governor as well.

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by: JBdem4usa @ Mon Jul 26, 2010 at 14:04:38 PM UTC

If the special election isn't in 2011... (4.00 / 2)

Lawsuits should be filed. The WV Constitution's intent is very clear. If the Governor resigns prior to January 2012, a special election is required.

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by: WV26003 @ Mon Jul 26, 2010 at 14:07:24 PM UTC

i agree n/t (0.00 / 0)

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by: Clem Guttata @ Mon Jul 26, 2010 at 14:45:31 PM UTC

[ Parent ]

Agree (4.00 / 2)

But what we have to consider is the definition of a "special election."  Special election does not necessarily mean that there is an election held outside the normal 2-year election cycle.  As special election is any election on the ballot that is NOT normally on the ballot.  We've elected state senators to unexpired terms (Kessler comes to mind) and there will be one of those "special elections" on the ballot in Senate District 10.  In the most recent Primary in May, we voted on nominees for a "special election" to fill an unexpired term on the State Supreme Court.

An election to fill an unexpired term for Governor that may or may not be on the ballot in 2012 WOULD BE a "special election" because that race would not normally be on the ballot.  The full term for Governor would, but not the unexpired term.  It might be symantics, but it's true.

State Code says the following in section 3-10-2:
"... If the vacancy shall occur more than thirty days next preceding a general election, the vacancy shall be filled at such election and the acting governor for the time being shall issue a proclamation accordingly...."

Apply that to the current situation.  If Manchin wins the Senate seat he will likely vacate the Governorship sometime in mid- to late November.  That is AT LEAST "thirty days next preceding a general election"... in 2012.

The full text of the section can be found here: http://www.legis.state.wv.us/W...

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by: fishhead @ Mon Jul 26, 2010 at 22:40:14 PM UTC

[ Parent ]

The situation has never occurred (0.00 / 0)

The only Governor in West Virginia to not complete his term was our first Governor - Arthur I. Boreman. He resigned about a week before the end of his term in order to accept a seat in the U.S. Senate.

Yet, the code section for gubernatorial succession is separate and distinct from all other offices. Legislative intent will be a major factor in any court ruling. Furthermore, I'm rather confident that the Supreme Court of Appeals would rule that a special general election must be held in 2011 or at the time of the May 2012 primary elections.

The real question I have is this: Who would have standing to file such a lawsuit in the event an acting Governor issues a special election proclamation?

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by: WV26003 @ Tue Jul 27, 2010 at 00:08:23 AM UTC

[ Parent ]

The only confidence (4.00 / 3)

I have in the SupCo is that they will give the decision they want.  When it comes to most decisions, I trust their judgement.  When it comes to decisions involving elections/politics, I've read enough of them to know they are more than willing to torture the English language to get the meaning they want at the time.

I've seen a decision that says "or" = "and".  I've never seen them be used interchangably in the English language before.

Additionally, they ruled in the 1994 Caperton v. Robb case that the legislative intent was that even though there was an election the same year as a vacancy, the legislature intended the election to be two years later.  I know that's a different section of code, but it's similar to what we might be facing here.

If you read the letter of the gubernatorial succession law, the only time the "acting" governor has the authority to call a stand-alone election is when the vacancy happens less than 30 days before the next general election.

Though I suppose we could expect the AG to further torture language to get to a predetermined opinion.  We have to note that in the opinion recently released at the request of the Governor, the AG mentioned several federal cases involving the 17th Amendment.  He quoted pontifications on the people's right to vote for US Senator.  Don't get me wrong.  I'm glad we get to vote sooner rather than later.  But what the AG DIDN'T mention in his opinion was the actual holding in each of the cases he cited.  The federal courts have upheld "temporary" appointments of up to 40 MONTHS as constitutional.  But he didn't mention that.  Word on the street is the governor really wanted a bill to pass so he didn't have to stand on the AG's very flimsy legal opinion.

So it's really hard to tell how the Supreme Court would rule.  And I suppose it's possible to say that a person with standing could be a WV voter who thought the "acting" governor hadn't called a special election soon enough.  If the law says there is to be a stand-alone election, and the "acting" governor didn't call one, any WV voter would be able to claim their right to vote for such office was being violated.

However it all works out...it should be fun to watch.

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by: fishhead @ Tue Jul 27, 2010 at 02:51:11 AM UTC

[ Parent ]

Two justices seats up in 2012 (0.00 / 0)

Both Justice Davis and (presumed) Justice McHugh will have their seats up for 12-year elections in 2012. That may influence their willingness to demand a special election in 2011.

And I agree that the Attorney General's "advisory" opinion was flimsy. I question his intervention in the matter anyway.  

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by: WV26003 @ Tue Jul 27, 2010 at 07:17:33 AM UTC

[ Parent ]

role of WV supremes (4.00 / 1)

Esp. if either viewed themselves as a potential '12 candidate for Gov. as well, eh?

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by: Clem Guttata @ Tue Jul 27, 2010 at 11:20:13 AM UTC

[ Parent ]

"Acting" as Governor (4.00 / 1)

The Constitutional issue of whether Tomblin is eligible for 1 or two terms if he serves as Governor prior to election is also huge.  

Article VII, Section 4 of the WV Constitution includes this language:
A person who has been elected or who has served as governor during all or any part of two consecutive terms shall be ineligible for the office of governor during any part of the term immediately following the second of the two consecutive terms.

In interviews, Tomblin has parsed the language carefully to note that "acting" as Governor is different from actually serving as Governor.  He wants the opportunity to run for two full terms.

The impact of this provision may also impact someone elected in a Special Election that's held in 2011 (if one occurs). Whether that person is eligible to run for a second term is unclear.

Tomblin apparently wants the ability to serve act as Governor while maintaining his position as Senate President. However, I don't know how that is permitted under the provisions of the WV Constitution.

Article VII, Section 4 of the WV Constitution ALSO includes this language:
None of the executive officers mentioned in this article [governor, secretary of state, auditor, treasurer, commissioner of agriculture and attorney general] shall hold any other office during the term of his service.

I don't see how "any other office" would not include State Senator and Senate President.

In a good conversation everyone speaks.  In a great conversation some even listen.

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by: Wabi-Sabi @ Tue Jul 27, 2010 at 00:25:53 AM UTC

I think that's the point (4.00 / 1)

I think you've hit it on the head.  If he is the "acting" Governor, he's not the Governor and is therefor not holding "any other office" than State Senator.

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by: fishhead @ Tue Jul 27, 2010 at 02:30:53 AM UTC

[ Parent ]

Article 7 Section 16 (0.00 / 0)

WV Constitution Article 7 Section 16.
7-16.  Vacancy in governorship, how filled.
     In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.  (emphasis added)

Tomblin may claim he's "acting" as Governor versus "serving" as Governor, but I don't see how he can wait 2 years to have an election called for by Article 7, Section 16.  If Governor Manchin wins election to the Senate he will be become Senator in Nov. 2010. That's less than 2 years into his term, much less 3 years.  

At most Manchin could delay until January 2011 to go to Washington, but that's still 2 years after his 2009 inauguration, not 3 years.  The latest we'll have a Special Election is Nov. 2011, possibly sooner.

In a good conversation everyone speaks.  In a great conversation some even listen.

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by: Wabi-Sabi @ Tue Jul 27, 2010 at 03:25:54 AM UTC

[ Parent ]

So we would have two years without an elected governor? (0.00 / 0)

That seems like loser of an argument. I would be interested in seeing if Tomblin has the guts to deprive people of 2years with a governor just so he can better position himself. The constitution is pretty clear and his actions would probably be challenged in court.  

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by: Randolph Clark @ Wed Jul 28, 2010 at 12:21:03 PM UTC

[ Parent ]