June 28, 2010
— Ace 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)
Post contains 635 words, total size 4 kb.
Posted by: President Barack Hussien Obama at June 28, 2010 07:15 AM (ngD76)
Posted by: Vice-President Bite Me at June 28, 2010 07:16 AM (ngD76)
Posted by: unknown jane at June 28, 2010 07:17 AM (5/yRG)
Posted by: Zombie Robert Byrd at June 28, 2010 07:18 AM (6QgoV)
Posted by: Vice-President Bite Me at June 28, 2010 07:18 AM (ngD76)
"He's not dead. He's just resting." -- WV Governor
Posted by: progressoverpeace at June 28, 2010 07:19 AM (Qp4DT)
Posted by: A Balrog of Morgoth at June 28, 2010 07:20 AM (ZESU0)
Maybe Barry could help him out... you know... give a speech, read a teleprompter...
I know, executive order saying that Byrd is merely sleeping in, resting up for the grand cross burning on July 4th.
Posted by: Hussein the Plumber at June 28, 2010 07:20 AM (RkRxq)
the appointment is 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.
The twist and turn with the primary is concerning. West Virginia had their primary in May. What do you legal eagles think?
Posted by: Herr Morgenholz at June 28, 2010 07:22 AM (5aa4z)
Well...not much difference, really.
Posted by: HeatherRadish at June 28, 2010 07:22 AM (mR7mk)
Posted by: THE SAVE GUAM PROJECT at June 28, 2010 07:23 AM (ngD76)
Posted by: progressoverpeace at June 28, 2010 11:19 AM (Qp4DT)
He's just pining for the Fjiords.
Posted by: Johnnyreb at June 28, 2010 07:24 AM (BuYeH)
"He's not dead. He's just resting." -- WV Governor
He's pining for the fjords?
Posted by: Brandon In Baton Rouge at June 28, 2010 07:24 AM (ZxF0y)
Posted by: progressoverpeace at June 28, 2010 07:24 AM (Qp4DT)
Posted by: garrett at June 28, 2010 07:26 AM (6QgoV)
Posted by: Gov Manchin at June 28, 2010 07:27 AM (9hSKh)
Posted by: Libtard at June 28, 2010 07:27 AM (ngD76)
Posted by: Nevergiveup at June 28, 2010 07:28 AM (0GFWk)
I cannot imagine how someone can claim that there is no vacancy when the sitting Senator is dead.
You really need to try harder.
Posted by: Bob Torricelli at June 28, 2010 07:29 AM (7+pP9)
This is good news.
About as good as Alito writing the majority opinion in the Chicago gun case.
Which means New Yorkers can again defend themselves at home without facing a felony. And that Bloomberg will have to limit his state nannyism to regulating cooking oil, salt content and high fructose corn syrup.
Posted by: Joe at June 28, 2010 07:30 AM (0Gde6)
Posted by: myrenovations at June 28, 2010 07:31 AM (imUut)
Posted by: Vic at June 28, 2010 07:32 AM (6taRI)
Posted by: brak at June 28, 2010 07:33 AM (W5NBA)
Posted by: laceyunderalls at June 28, 2010 07:34 AM (pLTLS)
Another seat the Dems have to defend in November--although another opportunity for a Republican to campaign like an ass. Still, I like our chances in a state carried by the worst Republican presidential candidate in my lifetime in the midst of the most unpopular Congress in my lifetime.
Posted by: Big Fat Meanie at June 28, 2010 07:34 AM (3iMgs)
Posted by: joncelli at June 28, 2010 07:34 AM (RD7QR)
Don't get your hopes up for this special election. There isn't really a prominent Republican with enough name recognition to make this an easy get.
Ya never know.
Posted by: Scott Brown at June 28, 2010 07:35 AM (c+oWt)
Posted by: brak at June 28, 2010 11:33 AM (W5NBA)
If they use a KKK hood, it just might work.
Posted by: Tami at June 28, 2010 07:35 AM (VuLos)
Yeah, I know they propped him up long enough to weep publicly when Teddy the Drunk went for the Dirt Nap, but it was clear then that the Byrd brain had already stripped its gears.
Osama Obama praised the black-hating old reprobate to the skies. He should resign in disgrace (see Trent Lott).
Posted by: MrScribbler at June 28, 2010 07:35 AM (Ulu3i)
Posted by: Miracle Max at June 28, 2010 07:36 AM (Aqzx6)
Posted by: myrenovations at June 28, 2010 11:31 AM (imUut)
There could be enough people pissed off at Obama and what the democrats have been doing that they'll vote for whoever has the R after their name. The do have tv's in their trailers in West Virginia right?
Posted by: buzzion at June 28, 2010 07:38 AM (oVQFe)
So is Hillary - and she was senator from where?
Carpet munching.....carpetbagging......same difference.
Posted by: IllTemperedCur at June 28, 2010 07:39 AM (Aqzx6)
Ugh. I'd file suit too if my Gov was getting jiggy with anything. That's an outright crime against humanity.
Posted by: laceyunderalls at June 28, 2010 07:41 AM (pLTLS)
Posted by: Tollhouse at June 28, 2010 07:43 AM (Vi9Ka)
Posted by: John Galt at June 28, 2010 07:43 AM (F/4zf)
Posted by: Robert Byrd at June 28, 2010 07:44 AM (oQIfB)
They re-elected a Kleagle 9 times....
Posted by: HeatherRadish at June 28, 2010 07:44 AM (mR7mk)
Posted by: ace at June 28, 2010 07:45 AM (SsvUp)
This will not be an easy pick up for Republicans. West Virginians are conservative but they love the pork. The only Republican pol with wide name recognition is the Cong. Shelly Moore Capito from the 3rd district who would have to give up a pretty safe seat. Also Capito is pro-choice so the dem would probably run to her right on that issue.
Our best bet may be the athletic route. Former WVU coach Don Nehlan or former WVU QB's Jeff Hostetler and Oliver Luck are all republicans. Nehlan is 74 so Hostetler (his son in law) is more likely. Luck would be great but he just moved back to the state (he ran for Congress 20 years ago then moved away until he became WVU's athletic director a few weeks ago). All live in Capito's district so one could run for her House seat if she does run for Senate.
Posted by: buzz at June 28, 2010 07:45 AM (kwhut)
Jehovah to Obama: You are Teh Has-Been soon, Skippy. Go back to that Bible you said you read, and see the part about pride going before a fall.
Posted by: exdem13 at June 28, 2010 07:46 AM (beW+t)
Posted by: Hussein the Plumber at June 28, 2010 07:46 AM (RkRxq)
Posted by: Nevergiveup at June 28, 2010 07:46 AM (0GFWk)
Whoops, Capito represents the 2nd district, which is the northern part of the state including Morgantown and some outer DC suburbs.
Posted by: buzz at June 28, 2010 07:47 AM (kwhut)
Posted by: Weekend At Byrdie's at June 28, 2010 07:48 AM (7b1Uc)
She seems unprincipled - in other words a typical loyal beltway Republican.
Posted by: chemjeff in moving hell at June 28, 2010 07:49 AM (Gk/wA)
Dead or alive, JUST KEEP HIM THE FUCK OFF GUAM.
WE'LL FALL INTO THE GODDAMN OCEAN ANY SECOND NOW!!!!?!?!?!!!!?!?!!
Actually theres really good news on that front, you can stop worrying. We checked with a bona-fide expert on the subject, Democrat County Supervisor Peggy West. As it turns out Guam is in absolutely no danger of tipping over whatsoever, as Guam apparently isn't actually an island at all. It apparently shares a border with Arizona on one side and Nebraska on the other.
Who knew?
Posted by: StuckOnStupid at June 28, 2010 07:50 AM (e8T35)
Pelosi hasn't been doing that already, even before Byrd became dead-dead?
Posted by: Kratos (Ghost of Sparta) at June 28, 2010 07:50 AM (9hSKh)
If the unexpired term of any office is for a longer period than above specified, the appointment is 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.
I don't see a Novemeber special election.
The way I read the applicable part of 3-10-3, the appointee tapped by Manchin will have the seat until a special election after the next WV pimary which isn't until May of 2012.
The appointee will then automatically be the Democrat nominee and will have to defend his seat to fill out the remainder of the term which ends in December of 2012
Posted by: Bubble Ba'athist at June 28, 2010 07:51 AM (AnTyA)
Posted by: David C at June 28, 2010 07:52 AM (ihhMS)
Posted by: Big Fat Meanie at June 28, 2010 07:53 AM (3iMgs)
Posted by: Richard McEnroe at June 28, 2010 07:53 AM (Sebu2)
Any word from Al "the Race Hustler" Sharpton? There's no way he'll pass up this opportunity to get his stupid ugly mug in the news.
My guess: Sharpton will say nice things about Byrd's repentance and use Byrd's dead body to a) bash white people, and b) get his name in the news cycle.
Posted by: a proud ewaster at June 28, 2010 07:54 AM (uFokq)
Posted by: Vice-President Bite Me at June 28, 2010 11:16 AM (ngD76)
hahahhahahaha
Posted by: Timbo at June 28, 2010 07:55 AM (ph9vn)
Before January, just who the hell was Scott Brown?
(Lightning can strike, you know. Hopefully on Obama...)
Posted by: Warthog at June 28, 2010 07:55 AM (WDySP)
NY has very liberal laws for qualification to run for Senate. probably a lot more liberal than WV.
Posted by: Vic at June 28, 2010 07:56 AM (6taRI)
Posted by: Nevergiveup at June 28, 2010 07:57 AM (0GFWk)
Posted by: Bubble Ba'athist at June 28, 2010 07:58 AM (AnTyA)
Posted by: gebrauchshund at June 28, 2010 07:58 AM (d7k0J)
Posted by: Jean at June 28, 2010 07:58 AM (vd5L0)
Posted by: A Balrog of Morgoth at June 28, 2010 07:59 AM (ZESU0)
Unfortunately the Supremes have said otherwise.
Posted by: Vic at June 28, 2010 08:01 AM (6taRI)
Posted by: Nevergiveup at June 28, 2010 08:02 AM (0GFWk)
Jessica Lynch
Posted by: Vic at June 28, 2010 08:03 AM (6taRI)
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
We resent this discriminatory atitude taken by this blog. Such prejudices are alas still common to our members. You can be sure that we will take all necessary legal/illegal steps to remedy this.
Metaphysically Impaired Americans
Posted by: Metaphysically Impaired Americans (MIA) at June 28, 2010 08:04 AM (R2fpr)
Jessica Lynch? Wonder is she is a Republican
Maybe the Dems can recruit Lynndie England to run...
Posted by: Big Fat Meanie at June 28, 2010 08:04 AM (3iMgs)
Posted by: Gov Manchin Munchkin
FIFY
Posted by: Guy who goes for the really obscure references at June 28, 2010 08:05 AM (R2fpr)
Posted by: Metaphysically Impaired Americans (MIA) at June 28, 2010 12:04 PM (R2fpr)
Differently Thermal
Posted by: Herr Morgenholz at June 28, 2010 08:05 AM (5aa4z)
Posted by: Bob Special (D-WV) at June 28, 2010 08:06 AM (+7UiC)
Posted by: 57 States at June 28, 2010 08:06 AM (UE+hB)
Posted by: Metaphysically Impaired Americans (MIA) at June 28, 2010 12:04 PM (R2fpr)
Differently Thermal
Otherworldly enabled
Posted by: Guy who goes for the really obscure references at June 28, 2010 08:07 AM (R2fpr)
look guys. i'm a getting kinda old son of the South guy. i grew up here for the last 53 years. i have nothing todo with the kkk and never have...... but they are still around. theres so many small towns with small redneck bars that would make even the Morons on here freak out about.
last summer my brother took me to a bar just to show me the sign in front of it near where he lives. it was after the Seals shot the pirates............ now this was on a 2 lane very busy highway. it said..........
Our Navy Seals Killed The ****** Pirates............ he said they put up a new message every week... was kinda funny that he said the week before it said. Hiring new waitresses, Lesbians only.
but they had some of the best fried shremp i have every ate in my life and some damn fine waitresses
Posted by: Racefan at June 28, 2010 08:07 AM (Pg9R/)
Mr Byrd will need to file the Form IL-6521, "Out of State Voter Registration by Dead/Deceased Reliably Democratic Individuals."
Posted by: Illinois Voter Registration at June 28, 2010 08:07 AM (3iMgs)
Governor Manchin.
How many coal miners has this Manchin guy buried? I find it hard to believe they like this guy.
Posted by: a proud ewaster at June 28, 2010 08:07 AM (uFokq)
Forget Capito; she has no pull outside the Maryland border, and the unions will carve her to pieces.
McCain comes from border Scots-Irish and had a military background; and that is why he did well in WV.
WV needs an honorably-discharged military hero with a "Mc" in his name - and it should have a lot of those - or, failing that, some athlete like buzz said in #55. This looks like a place where Sarah Palin could help by finding someone like that.
Posted by: Joe Biden at June 28, 2010 08:08 AM (9Sbz+)
Posted by: Dunkirk at June 28, 2010 08:10 AM (kbHJ6)
Posted by: Greg Q at June 28, 2010 08:11 AM (87k2j)
Posted by: Zimriel at June 28, 2010 08:11 AM (9Sbz+)
Posted by: Zimriel
That's right. After all, they have me! Hello?
Posted by: Michael Steele at June 28, 2010 08:14 AM (R2fpr)
Posted by: B. Long at June 28, 2010 08:15 AM (z2KC5)
Posted by: Zimriel at June 28, 2010 08:16 AM (9Sbz+)
Posted by: Bubble Ba'athist at June 28, 2010 08:16 AM (AnTyA)
Posted by: buzz at June 28, 2010 08:16 AM (kwhut)
I wasted most of my morning looking at Byrd clips on YouTube and concluded that they've been pulling that one for at least the last six years.
Posted by: HeatherRadish at June 28, 2010 08:17 AM (mR7mk)
Just as with the issue of Constitutional eligibility. But ... we know how that's gone.
Behold, the Age of Empathy!
Posted by: progressoverpeace at June 28, 2010 08:17 AM (Qp4DT)
102 The gov can't declare a vacancy until the death is actually confirmed. ... That process could easily take until July 3.
That would drag out the process all week. It would become a morbid farce. I don't know that the Democrats want that going into Independence Day.
Posted by: Zimriel at June 28, 2010 08:19 AM (9Sbz+)
What's Stan McChrystal up to these days?
Posted by: Tattoo De Plane at June 28, 2010 08:20 AM (mHQ7T)
Posted by: Big Fat Meanie at June 28, 2010 08:22 AM (3iMgs)
Posted by: Tattoo De Plane at June 28, 2010 08:22 AM (mHQ7T)
Posted by: dagny at June 28, 2010 08:22 AM (6l9JW)
111 What's Stan McChrystal up to these days
Hardly "honorably discharged". He's lucky not to be standing tall before a CM.
Posted by: Zimriel at June 28, 2010 08:23 AM (9Sbz+)
That would drag out the process all week. It would become a morbid farce. I don't know that the Democrats want that going into Independence Day.
Posted by: Zimriel
at June 28, 2010 12:19 PM (9Sbz+)
What makes you think that the dems care? Most of their actions and statements over the past year and a half have been beyond insane and dumber than anything anyone has ever seen in public. The dems don't care. They revel in their stupidity and tastelessness.
Maybe the Governor could appoint Richard Blumenthal to fill the vacancy? Blumenthal can just lie and say he's been living in West Virginia ever since his stint as captain of the Hah-vahd swim team. Dems love this sort of shit.
Posted by: progressoverpeace at June 28, 2010 08:23 AM (Qp4DT)
Posted by: Guy Fawkes at June 28, 2010 08:23 AM (T0bhq)
Posted by: Zombie Robert Byrd
I'm inclined to agree with HeatherRadish. Based upon the available evidence, I'd say that you've been around for quite some time.
Posted by: Blue Hen at June 28, 2010 08:23 AM (R2fpr)
Posted by: Guy Fawkes
Such distinctions are important. Trust me on this.
Posted by: Gov. Munckin at June 28, 2010 08:25 AM (R2fpr)
Posted by: Byrd Living Is Real at June 28, 2010 08:28 AM (+7UiC)
Um, no. Mollohan "represents" northern WV, including Morgantown and the northern panhandle. Capito more or less represents the middle part of the state, which does include the eastern panhandle. Rahall represents the unions and ACORN.
Posted by: Reiver at June 28, 2010 08:28 AM (64S5N)
Posted by: Guy Fawkes at June 28, 2010 12:23 PM (T0bhq)
There is comedic gold for the mining here, if SNL weren't so in the tank for the Democratic party.
Posted by: Tattoo De Plane at June 28, 2010 08:29 AM (mHQ7T)
Posted by: Vyceroy at June 28, 2010 08:29 AM (3Q2mj)
Posted by: Tattoo De Plane at June 28, 2010 08:30 AM (mHQ7T)
Thanks for that, Dead Cyclops. Rampant illiteracy, unemployment, poverty, and you name a bunch of government buildings after yourself, importing union workers who will never retire, with outrageous pensions and salaries, to lord it over your "white n-word" constituents.
Posted by: Tattoo De Plane at June 28, 2010 08:34 AM (mHQ7T)
West Virginians can vote for the right GOP candidate but, yes, they are going to have to acknowledge the pork. West Virginians all see themselves as the poor, besotted "little guy" who is always screwed by the man. They don't see themselves as welfare recipients, they want to get theirs, they don't want anybody else in on the deal.
Here's the thing, with the seat being open, nobody will be able to claim that they will have seniority and, in fact, the Republican can make the argument that, if you want a new bridge or road after 2012, it'd be nicer to have a member of the GOP majority with 2 years of seniority than a Democrat.
Posted by: AmishDude at June 28, 2010 08:38 AM (T0NGe)
What's Stan McChrystal up to these days?
Posted by: Tattoo De Plane at June 28, 2010 12:20 PM (mHQ7T)
According to some information I've heard, McChrystal would be an ideal Dem candidate. I know one thing was that he banned Fox News from his command.
Posted by: buzzion at June 28, 2010 08:41 AM (oVQFe)
I foresee sightings of Sen. Sheets all over the Capitol. He will be the Master of Ceremonies on the National Mall for the 4th of July concert.
Posted by: mpfs at June 28, 2010 08:50 AM (iYbLN)
Posted by: mpfs at June 28, 2010 08:52 AM (iYbLN)
Do not put this past them. They have shown they will do whatever they can get away with, and some things they can't get away with, to try and keep power. They only like the idea of elections when they think they can win.
Posted by: MikeTheMoose at June 28, 2010 08:59 AM (0q2P7)
Posted by: TEE866 at June 28, 2010 09:04 AM (7zsD+)
Posted by: TEE866 at June 28, 2010 09:06 AM (7zsD+)
Posted by: Uncle Jed at June 28, 2010 09:09 AM (RuMjP)
Posted by: TimothyJ at June 28, 2010 09:09 AM (btj5a)
Posted by: Uncle Jed at June 28, 2010 09:10 AM (RuMjP)
Posted by: Burn the Witch at June 28, 2010 09:12 AM (fLHQe)
Posted by: erp at June 28, 2010 09:15 AM (Wkm4K)
Respect for the Rule of Law? Shame? Oh wai....
Posted by: Tollhouse at June 28, 2010 09:30 AM (Vi9Ka)
Posted by: tsj017 at June 28, 2010 09:30 AM (4YUWF)
Posted by: scr_north at June 28, 2010 09:34 AM (73me2)
You must not be familiar with libtard logic.
Posted by: rockhead at June 28, 2010 09:59 AM (RykTt)
Maybe he's not really dead dead yet?
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Posted by: Gen Francisco Franco at June 28, 2010 07:14 AM (0GFWk)