Attorney General Darrell McGraw, responding to questions posed by Manchin yesterday, has just concluded that the governor can declare a special election to fill what remains of Byrd’s term. Manchin sought the legal opinion after joining a growing push to hold a vote earlier than 2012, when Byrd would have faced re-election.

Manchin has said he would prefer placing the seat on the Nov. 2 general election ballot. Citing that date, McGraw’s opinion suggests that Manchin set a special primary election “at a time which maximizes the opportunity for all potential candidates” and voters.
“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,” the governor said in a statement.
Pending an election, the governor will appoint someone to fill the vacancy. Manchin has said he may run for Byrd’s seat, but won’t arrange to have himself appointed.
Secretary of State Natalie Tennant, West Virginia’s chief elections officer, earlier ruled that Manchin’s appointee to fill the vacancy could keep the seat until 2012. Tennant later said she personally favored an earlier election.
McGraw’s ruling said Tennant’s analysis relied too much on a 1994 state court ruling, which arose from a judicial appointment, and too little on the 17th Amendment. That change to the U.S. Constitution shifted the election of U.S. senators from state legislatures to voters.
Manchin may now call a special legislative session to settle details such as candidate filing and party nomination deadlines. McGraw’s opinion found that the governor already has the power to set the parameters of a special election. “Otherwise, the power to proclaim the election would be meaningless,” it said.
Tennant said Thursday that her office has begun drafting possible measures for a special session. She said the differing opinions about when to hold the election underscore the need for making state election law more clear.
Given the short time before Nov. 2, McGraw also offered to help ensure the participation of minor parties and overseas military and other likely absentee voters.
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