W.Va. AG asked for opinion on Byrd replacement plan

John O'Brien Jul. 7, 2010, 2:12pm


CHARLESTON, W.Va. (Legal Newsline) - West Virginia Attorney General Darrell McGraw may determine when an election is held to replace late U.S. Sen. Robert Byrd.

Gov. Joe Manchin said Wednesday he's asked McGraw for an opinion on the replacement procedure and will not appoint a successor until he has received it. Byrd passed away last week after 51 years in the Senate as the longest-serving member of Congress in history.

"I truly believe, out of respect for the attorney general, that he should be given the opportunity to provide clarity on this issue," Manchin said.

"The attorney general is the highest ranking legal official in the executive department and his opinions hold tremendous weight."

Manchin is asking McGraw to determine:

-If Manchin is legally authorized to create a special election to fill Byrd's term;

-If he is, when can the election be held; and

-If the election can be held before 2012, what law governs election procedures, nominations, filing deadlines and campaign finance.

"The issue of when such an election may lawfully occur raises questions of law that, when examined by persons of sound legal training and experience, may be answered in a way that reasonably calls into question the constitutionality or legislative intent of the law," Manchin wrote.

McGraw's office has already begun looking into the replacement procedure. Secretary of State Natalie Tennant's interpretation of current laws has left most officials looking for an alternative.

Tennant says state law calls for the appointment of a successor by Manchin. However, since no one had filed candidacy papers for the office this year, a special election for Byrd's seat can not be held.

Instead, the appointee would serve until 2012. In that year, there would be two elections -- one to replace the appointee and fill out Byrd's term (a five-week position) and one for a six-year term.

"(T)here are some who reasonably question the constitutionality and legislative intent of this law," Manchin said.

"And I think most agree, myself and Secretary of State Tennant included, that 2 ½ years is too long to wait for the people to have their say in an election."

Manchin, whose current term as governor will be his last because of term limits, reinforced that he will not appoint himself to the seat. He also said he would "highly consider" running for the seat if an election is held this year.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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