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McGraw: Byrd's seat could go on the ballot this fall

CHARLESTON, W.Va. -- Gov. Joe Manchin can call for a special election to fill the state's vacant U.S. Senate seat, state Attorney General Darrell McGraw said Thursday.

An advisory opinion issued by McGraw's office makes it appear inevitable there will be a special election. But the date and shape of that election still remain uncertain.

The opinion, instead of settling what happens next, appears to have created a standoff between those who still believe legislative action is needed, including Secretary of State Natalie Tennant, and House Speaker Rick Thompson.

McGraw concluded Manchin is empowered to call for a primary and general election to fill the seat vacated last week by the death of Sen. Robert Byrd.

The opinion does not appear to mandate that the governor call an election, although Manchin said this week that the state's people must be allowed to vote soon.

Manchin - widely perceived as the prime contender for the Senate seat - said Thursday he would now turn to the Legislature to see what to do next.

"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 in a statement.

Tennant has been drafting legislation to clean up state code, which she still believes is not clear, despite the attorney general's opinion. She said Thursday she wanted a special legislative session next week to fix election laws.

But Thompson said McGraw's opinion meant lawmakers do not need to address the issue until later.

"The opinion also points out that the Governor has the power to set these elections without the need to call a special session - thus saving the taxpayers money - and allowing for the Legislature to more properly deal with the complexities of election law during the regular session rather than under the artificial time constraints of a special election," the speaker said in a statement.

McGraw's conclusion was widely expected and lays out how the state should fill the seat under current law: First, voters should pick party nominees in a primary election. Then, they should return to the polls to decide whom the state ultimately sends to Washington.

The opinion, though, does not provide ultimate clarity on how or when all of that should happen.

"It needs to be clarified by the Legislature, and the best thing we can do now is do it in a special session," Tennant said.

While McGraw's opinion supercedes a contradictory interpretation of existing law issued last week by Tennant's office, it still could be challenged in court.

Tennant, for her part, had concluded that state law and a 1994 state Supreme Court ruling prohibit an election this year and instead would require the governor to appoint someone until 2012. Manchin said he agreed with Tennant even as he asked McGraw for a second opinion.

McGraw said Tennant's interpretation "creates a situation which, while perhaps not absurd, would certainly be awkward and unintended: two elections in November 2012, one to fill a Senate vacancy of (by then) a few weeks, and another for a full term of office." Byrd's term was set to expire in January 2013.

According to the attorney general, Tennant also gave "insufficient weight to the dictates of the 17th Amendment" of the U.S Constitution, which allows only  "temporary" appointments to Senate seats.

The amendment calls for the popular election of senators. Before the amendment was ratified a century ago, senators were selected by state legislatures.

The attorney general's opinion uses the amendment to smooth out ambiguities in state code.

State law says a special election should be held if a Senate seat opens up with more than two and a half years left in the term. But it also says the election should occur as part of a regular cycle, meaning there should be a full primary and general election.

McGraw said the clear purpose of the 17th Amendment is to allow "the direct voice of the people in the selection of their senators." State laws "must be construed to embody the principle of popular sovereignty."

The attorney general's opinion does not give a specific timeline for holding either the primary or general election. But he suggests using the already scheduled election this November to maximize the chance 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 general counsel Jonathan Deem said in a Thursday afternoon e-mail it was not clear what that meant for the timing of the election.

It could mean holding a primary in the next few weeks and then using the November election for the special Senate general election; or it could mean using the November election to hold a special Senate primary and then holding a special general election months later, possibly early next year.

While the attorney general's opinion supercedes the opinion issued last week by the secretary of state, the state Supreme Court could overrule the attorney general. But, despite rumors, there was no indication Thursday evening that anyone planned to bring a lawsuit.

Tennant said her opinion still differs with the attorney general's and there is continued uncertainty about the meaning and intent of state law.

Her office is working on legislation to clean up the succession process for the state's U.S. Senate seats. She also said she is looking at cleaning up the law surrounding what happens if there is a vacancy in the governor's mansion.

"It just depends on what the lawmakers want to put through," Tennant said of the language meant to clear up what happens if the governor leaves.

Manchin's probable departure for Washington is likely to set off a scramble to replace him, possibly in a special gubernatorial election in 2011.

State Treasurer John Perdue told MetroNews Talkline Thursday that he will run if there is a special election for governor in 2011. Other candidates are already jockeying for support as well.

Contact writer Ry Rivard at or 304-348-1796.



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