ZeroSheep sends this link.

He says this means the limitation of two years, six months applies to the length of service of the appointed replacement, and thus state law okays it if the Governor waits a week (or, presumably, a month, or two months, or a half a year, or a year).

Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals, or in any office created or made elective, to be filled by the voters of the entire state, or judge of a circuit court, shall be filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, or a judge of the circuit court, be for less than two years; or if the unexpired term of any other office named in this section be for a period of less than two years and six months, the appointment to fill the vacancy shall be for the unexpired term. If the unexpired term of any office be for a longer period than above specified, the appointment shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term. Proclamation of any election to fill an unexpired term shall be made by the governor of the state, and, in the case of an office to be filled by the voters of the entire state, shall be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county of the state. If the election be to fill a vacancy in the office of judge of a circuit court, the proclamation shall be published prior to such election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in the judicial circuit.

I've bolded the part I argue -- or at least I hope -- applies. In the case of Byrd, the unexpired term is more than two years, six months. So I would argue the appointment-until-next-election rule kicks in.

Yes, the governor can delay his declaration, but that doesn't change the fact (I would argue) that the unexpired term of the vacancy was actually more than two years, six months.

I mean, the fact is, the vacancy has occurred now. This is the fact. The governor can declare or not declare a vacancy; but the vacancy has, in fact, already occurred, with more than 2 years, six months left in the unexpired term.

The seat is currently vacant. I want to keep saying that. What the governor may declare is, to my mind, irrelevant; we know for a fact it is vacant, right now, more than two years six months before the expiry of the term.

Bear in mind I'm a determined advocate here so I think maybe I'm seeing this the way I wish it to be.

On the Democrats' argument we can't have a timely primary:

If the vacancy is to be filled at a general election and shall occur before the primary election to nominate candidates to be voted for at such general election, candidates to fill the vacancy shall be nominated at such primary election in accordance with the time requirements and the provisions and procedures prescribed in article five of this chapter. When nominations to fill such vacancy cannot be so accomplished at such primary election, and in all cases wherein the vacancy is to be filled at a special election, candidates to be voted for at such general or special elections shall be nominated by a state convention to be called, convened and held under the resolutions, rules and regulations of the political party executive committees of the state.

So the rules apply for a state convention if there isn't enough time for a primary. Correction: This part of the code applies to a gubernatorial vacancy, not a senatorial one.

The Secretary of State Will Make an Announcement at 4:30 PM. And she is... a Democrat.

West Virginia Secretary of State Natalie Tennant will explain the succession process for the late Sen. Robert Byrd's (D-W.Va.) seat during a press conference Monday afternoon, according to her spokesman.

Tennant's office has been consulting with the staff of Gov. Joe Manchin III (D) to determine how to proceed. The state's election code isn't clear about whether a special election should be held to fill the remainder of Byrd's ninth term or whether a placeholder can serve until 2013.

Gentlemen, start your lawsuits.

Oh: Here is Secretary of State Natalie Tenant herself (at least the webpage announces it's her authorship).

Vacancies and Unexpired Terms

Basic Principles

The West Virginia State Constitution provides a clear mandate that all elective state and local offices should be filled by the voters as soon as possible after a vacancy occurs. State law steps in to spell out how vacancies are filled temporarily, and to resolve issues about how candidates will be nominated and when the office will again be filled by election.

The United States Constitution governs how vacancies in the Congress are filled. Although the Governor appoints to fill a vacancy in the U. S. Senate, only the voters may fill a vacancy in the House of Representatives, even for a few months.

Filling an unexpired term when a vacancy occurs can become a complicated legal issue. The rules differ for different offices and for different times during a term. Regardless of the differences, however, the law provides a specific way to insure that elective offices don't remain vacant. Use these links to go to more information below.

United States Senate

If the vacancy occurs less than two years and six months before the end of the term, the Governor appoints someone to fill the unexpired term and there is no election. If the vacancy occurs two years and six months or more before the end of the term, the Governor appoints someone to serve until the unexpired term is filled at the conclusion of the next candidate filing period, Primary Election, General Election and certification.
.

This is the Secretary of State's reading of the law -- at least before she found the party didn't want her read it this way.

The "clear mandate" is to fill these seats by election as soon as possible, and her own digest states that the relevant timeframe is from the start of the vacancy itself, not from the governor's declaration of the vacancy after the fact.

The seat is now vacant.

The seat is now vacant.

The seat is now vacant.

I have to keep repeating that.

More: I think I misunderstood ZeroSheep. I think he's arguing what I'm arguing. He writes:

Not sure where the "vacancy declared" language is coming from; I looked at the Nate Silver article, and he cites back to the W. Va. SoS. The only language in the statute, though, is "Any vacancy occurring in the office of . . . "

I don't have access to the case law, but the statute treats the vacancy as something that just happens, with -- only after the fact -- the governor then making appointments and, if necessary, setting the special election. There is no definition of 'vacancy' in this particular section (3-10-3), but the preceding section (3-10-2) discusses the procedure for replacing the governor:

"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 . . ."

I can't be sure without perusing case law, of course, but I would be willing to bet at pretty steep odds that under W. Va. law, when a U.S. senator dies the seat is vacant as of that moment by operation of law -- with no action by the governor necessary. (All bets would be off for "other disability," etc, but death is pretty cut and dry.)

Hm, I think maybe this whole argument that "the law is unclear" was created by Nate Silver which the Democratic establishment is seizing on.

More: ZeroSheep.com says I have that state convention wrong; he says that applies to only gubernatorial vacancies.

That [the provision for a state convention] looks like 3-10-2, which governs if the vacancy is in the governor's mansion. Section 3-10-3 governs U.S. Senate (plus various state offices), and section 3-10-4 governs the U.S. House. All three have differences in procedure: 3-10-2 allows for a convention in lieu of a primary; 3-10-3 requires the filing of the certificate, primary, and general election; and 3-10-4 requires a special election to be set between 30-75 days after the vacancy, with the nominees chosen a they are for governor (the convention process, presumably).

According to the article five reference in 3-10-2, primaries happen every even-numbered year only (3-5-1). So that's where the confusion/murkiness is coming from: there is no primary in 2011, so do you wait to fill the seat in 2012 as normal, or is there some other mechanism for doing it sooner? I think the plain language of the statutes is in the Democrats' favor, but there are statutory, and probably constitutional (not to mention practical political), arguments for having a special election instead of an appointment. For example, what's the point of a law requiring an election for a term with more than 2 1/2 years left, if the election cannot happen before the expiration of that term?

The more I look into this the only thing I'm certain of is that West Virginia attorneys have job security.

Well, I see it as laws in conflict, then: the statute says there must be a special election if there's a vacancy of more than two years, six months, but another section, then, makes it difficult to have one due to strict timing provisions.

Posted by: Ace at 09:27 AM | Comments (132)
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Very cool. The video consists of interviews with gun-rights theorist John Lott and plaintiff Otis McDonald.

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Posted by: Ace at 08:59 AM | Comments (55)
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A representative of Frum complained that FrumForum was not allowed to join the Blogads Conservative Hive advertising network. And he sort of threatened Hawkins, kinda. At least he threatened to make a public fuss about it, which, honestly, isn't much of a threat, but okay:

John,

I shared your e-mail refusal to add FrumForum.com to the Blogads advertising hive because you don’t consider it conservative to David and he said, “.. You may tell him from me that I consider this decision a fascinating news story in its own right.”

Yes, David Frum finds the topic of David Frum endlessly fascinating. This we already knew.

So Hawkins decided to make it a news story himself.

[I]f [being the MFM's go-to conservative basher is] what he wants to be known for, I'm certainly not going to do anything to help him stick a shiv deeper in the back of people who believe the things that I do. Maybe some people are willing to turn a blind eye because they know and like David personally, but I'm not his friend, I genuinely don't consider him to be a conservative or even someone who's friendly to the conservative movement, and I'm not willing to give him a pass for the way he behaves.

So, if you or David think it's a "fascinating news story in its own right,” knock yourself out. Maybe David can write about it the next time he sneers at conservatives for Newsweek.

You may tell David that from me.

Look, if you buy an ad on Conservative Hive, you're buying an ad on all the blogs on Conservative Hive.

Does Frum not appreciate some people may not want to run ads on his site, and including him, then, in the group may be bad for the other bloggers' businesses?

Posted by: Ace at 08:27 AM | Comments (72)
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So cuddly!

Thanks to JoeM, via SciFiWire.com.

Posted by: Ace at 07:41 AM | Comments (34)
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You might think this was obvious, but in fact, had Robert Byrd lived until July 3rd, there would have been no special election at all -- the Governor (a Democrat) would have appointed someone to hold the seat until Byrd's term expired (in 2013).

He died just days before that rule would have kicked on.

Byrd's current term expires on January 3, 2013. Under West Virginia state law on handling Senate vacancies, "if the vacancy occurs less than two years and six months before the end of the term, the Governor appoints someone to fill the unexpired term and there is no election". Otherwise, Manchin [Ed note: a Democrat] would appoint an interim replacement, and an special election would be held in November to determine who held the seat in 2011 and 2012.

In other words, we are within a week of the threshold established by West Virginia law. If a vacancy were to be declared on July 3rd or later, there would not be an election to replace Byrd until 2012. If it were to occur earlier, there could potentially be an election later this year, although there might be some ambiguities arising from precisely when and how the vacancy were declared.

Yeah, that is a sticking point -- the governor could, I suppose, wait until July 3rd to establish a vacancy, but that, I imagine, would set up an immediate lawsuit which would be resolved against him. I cannot imagine how someone can claim that there is no vacancy when the sitting Senator is dead.

I mean, this is not an ambiguous case, like he's alive but stricken with illness.

McCain beat Obama in 2008 in West Virginia by 13% of the vote.

Declaring a Vacancy: I don't know the law here at all, but a Governor may declare a vacancy when the Senator is still living -- stricken and unable to perform his duties, in jail, etc.

That is, I'll call it, a permissive declaration.

Although he could expect some pushback and possible lawsuits from the Senator if he tried to get jiggy with this power. Obviously a Governor can't "declare a vacancy" on a whim -- so if there is not a specific law on what conditions make a seat ripe for a declaration of vacancy, expect the courts to fill in the common-sense restraints.

On the other end of it, there is what I'll term a mandatory declaration. If the guy is dead, the governor has no decision-making power in declaring a vacancy, or not declaring a vacancy. Facts themselves have declared it. The Governor's power is a formality here.

Now if the courts would have power to restrain a governor from declaring a vacancy on a whim (as I believe they must), I also have to think they could restrain a governor from refusing to declare a vacancy on a whim.

If the Governor is permitted to delay a declaration by a week, why could he also not wait a month? How about a half of a year? How about a full year?

Instead of guestimating how long he may wait to declare a vacancy, isn't the bright-line, no-argument, common-sense solution that if a senator dies the vacancy begins at the moment of his death?

West Virginia already has a long period, established by law, for a governor's unelected appointee to serve out the term in a Senate vacancy. Allowing the governor to wait a week extends this still further, contrary to the law.

In other words, I think West Virginia's law establishes the maximum amount of time that the state may have a vacancy and appointment to that vacancy, and the Governor may not override the state law through exercise of claimed executive power.

Posted by: Ace at 07:11 AM | Comments (150)
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Remember the whole "Office of The President Elect" thing? I joked that that was the office Obama really wanted, lots of meetings, the chance to give lots of fun speeches to adoring crowds, plenty of time for waffles but no real responsibilities.

Turns out, I was right.

Almost a year and half on the job and Team Obama is pretty bummed that being President means having to deal with actual problems. And the worst part? You don't get to pick what happens or when.

“All you can do is smile at the absurdity of these things piling up,” said someone who spends much of the day with Obama. Interviews with top White House advisers revealed little smiling in the past 10 days — but a sense that, in the aftermath of it all, they avoided two potential P.R. disasters and emerged with a clear sense of the argument Obama wants to take to voters over the next four months.

The advisers provided a behind-the-scene look at how Obama handled the dramas — and explained how all of this will fit into coming campaign. There is a tendency in Washington, and certainly in journalism, to draw big meaning from big events — and many are already claiming Obama has vindicated the power of his presidency with his latest acts.

But privately, Obama advisers talk of being prisoners to uncontrollable events and deeply uncertain about how all of this will play out. Yes, he showed decisiveness in firing McChrystal. But the White House is as uncertain as ever about whether the war can be won. Yes, he stared down BP and made sure they will pay at least $20 billion to clean up its mess. But the oil still gushes, with no end in sight for what one aide calls a “rolling disaster.” Yes, he will likely soon sign the most sweeping regulation of Wall Street since the Great Depression. But it won’t create jobs or end financial mischief.

...“If you take a wide-lens view of the domestic and international accomplishments, he has brought America back,” Emanuel said. “We have righted the ship on the crises we inherited, and laid a new foundation for long-term economic competitiveness.”

Yet, the landscape remains befuddling: an angry country, a stubborn economy, and a pair of wars where victory canÂ’t be defined, perhaps much less achieved.

As Obama might say, it's unprecedented that a President actually has to deal with crisis not of his own choosing. Except it is so obviously...not.

This article really plays up a couple of absolutely annoying things about Obama and the people he surrounds himself with.

They really think they are special, that everything that happens to them is newer, bigger and more important than anything that has ever come before. A quick glance at a history book will not only show that every other President has had to deal with unexpected problems beyond their control but many have had to deal with far more dangerous and intractable problems.

The tone of this article also demonstrates the 'poor us' mentality of Obama and his team. What's with all the problems and decisions? More than a third of the guy's term is over and he still whining on a near daily basis about the nature of the job. Of course, that's when he takes a break from whining about the 'unprecedented' nature of all the problems he inherited.

You'd think the smartest group of politicians ever to grace American, nay the world, would have considered the words of former British Prime Minister Harold Macmillan. When asked what the greatest challenge statesmen face he replied, "Events, my dear boy, events".

As always, Obama seems to think it would have or should have been different for Him.

Posted by: DrewM at 06:57 AM | Comments (104)
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Just breaking and it will take some time to unpack but here's Gabe's post on the issue when the Court announced it would take the case.

Via SCOTUSBLOG. 14th Amendment incorporates 2nd Amendment as part of Due Process clause.

Here's the PDF of the decision, all 214 pages of it.

It's a 5-4 decision by Justice Alitio reverses the decision by the court of appeals to uphold the law and now sends the case back to the 7th Circuit Court of Appeals for decision based on this new standard.

Looks like it's going to be a case with multiple opinions, even among the majority. First thought...lots more lawsuits to sort this out on a practical level. Wonderful.

Posted by: DrewM at 06:06 AM | Comments (139)
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This used to be a funhouse, but now it's full of evil clowns.

Posted by: Gabriel Malor at 05:15 AM | Comments (80)
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Here's the Fox News link.

No flaming skull because the guy was 92 and it's not like nobody saw this coming. RIP, Senator Byrd.

Posted by: Monty at 03:49 AM | Comments (168)
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What good news have we on this mean old Monday morn, my bretheren?

Well, here's a bit of splendid economic news that probably won't make the CNBC news-crawl: the Cadiz, Kentucky Civitan Yard Sale was a big success.

Treasurer Ronnie Cook reported a successful yard sale, as the 41st Annual Cadiz Civitan Yard Sale, with purchases, and donations, totaled over $1,600.00.

Dodge City has okayed the permit for a flea market in the south end of town, which means that local tradesmen, vendors, craftsmen, and entrepreneurs may now conduct their business out of the oppressive shadow of government oversight. Futures in Hummel figurines, Elvis collectible plates, and Hamm's neon beer signs have soared on the news. Related commodities have risen as well: the cheap watery beer (CWB) index is higher, the pulled-pork sandwich (PPS) number jumped nearly a hundred basis points, and fried cheese curds (CURD) is trending to a three-month high.

So much for the good news. Now: the drumbeat of DOOM!

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Posted by: Monty at 03:09 AM | Comments (34)
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