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McGraw: W.Va. should hold Byrd replacement election this year

By John O'Brien | Jul 8, 2010


CHARLESTON, W.Va. (Legal Newsline) - West Virginians should elect someone this year to replace the late U.S. Sen. Robert Byrd, a legal opinion issued Thursday by state Attorney General Darrell McGraw says.

McGraw's opinion contradicts the stance of Secretary of State Natalie Tennant, who said Gov. Joe Manchin would have to appoint a replacement to serve until a Nov. 2012 election when voters would elect a five-week senator to finish Byrd's term and another candidate to start a six-year term in Jan. 2013.

Manchin requested McGraw's opinion Wednesday. McGraw termed the scenario described by Tennant "awkward and unintended" and recommended a special primary election.

"(State law), construed in aid of the U.S. Constitution, Amendment XVII, authorizes the governor to proclaim a special election to fill the remainder of Sen. Byrd's unexpired term, since said unexpired term exceeded two years and six months at the time the vacancy occurred," McGraw wrote.

"The date of the special election may be set by the governor in the proclamation. Since a general election is already scheduled for (Nov. 2), it is suggested that a special primary election be held at a time which maximizes the opportunity for all potential candidates to prepare for both the special election and the general election, and for all voters, including those in the armed services, to participate and have their voices heard."

Manchin thanked McGraw for the timely reply to his request.

"In light of this opinion, I plan to speak with the state's legislative leadership immediately to determine how we will further proceed in order to reach a conclusion to this matter," Manchin said.

Manchin, in his last term as governor, has said he will not appoint himself to Byrd's position but would "highly consider" running for the seat if an election is held this year.

Byrd passed away last week after 51 years in the Senate as the longest-serving member of Congress in history.

Manchin had requested McGraw's opinion on election procedures.

"The conduct of the special election may be set by the governor... to conform as closely as possible to existing election law... with necessary modifications," McGraw wrote.

"The power to proclaim a special election... necessarily carries the ancillary power to set the parameters of said special election; otherwise, the power to proclaim the election would be meaningless."

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

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