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West Virginia Supreme Court orders special election for governor this year

CHARLESTON, W.Va.--The West Virginia Supreme Court says the state must hold an election for governor this year.

In an opinion issued Tuesday, the court ruled that the state's founding fathers didn't intended for anyone - including Senate President Earl Ray Tomblin - to act as governor for more than a year without an election.

"We believe the framers of the constitution . . . clearly intended that a person not elected to the post may act as governor for a period of no more than one year," the court said.

Tomblin assumed office on Nov. 15, 2010, the day Joe Manchin left to join the U.S. Senate. The court directs Tomblin to order an election "forthwith."

The unanimous opinion was written by Justice Brent Benjamin, the court's sole elected Republican. Preston County Circuit Court Judge Lawrance Miller, another Republican, was sitting on the court in place of Justice Robin Davis, who disqualified herself because she intends to run for unspecified statewide office in 2012.

Tomblin, who is acting governor by virtue of being Senate president, contended that state law allows him to serve until the next general election.

But in separate lawsuits, Citizen Action Group and Charleston attorney Thornton Cooper both said the state constitution - which overrides any state law - was not written with such a long period of service by a Senate president in mind.

The court agreed that failing to have an election would violate the rights of state voters, who have a right to choose their highest officials.

The court also said the constitution says a "new election for governor shall take place to fill the vacancy" if the vacancy occurs before the end of the third year of the four-year term.

"This language is plain and unambiguous," the court said, adding that it was a "mandatory" provision.

Further, the court found, the constitution is "consistent with the fact that our government is founded upon the right of people to elect their highest public officials."

The court's opinion actually strikes down only a small part of state law - a mere 21 words - that would delay the election until November 2012 because the vacancy in the Governor's Office occurred just after the 2010 election. The rest of the law on gubernatorial succession remains intact.

That includes a section of the law allowing political parties to hold conventions to choose their candidates for general election rather than by way of a statewide primary election.

But the justices, in what could be read as a wink and a nod, seemed to question the wisdom of the party conventions.

They note that the party convention option is "within legislative prerogative and does not violate the state constitution."

But they add, "Having found the procedure constitutional, it would be improper of this court to second-guess the wisdom of this procedure, or otherwise 'legislate' a procedure more to our liking. We observe that the Legislature has just begun its general session."

The court pointed out that the 80th Legislative session has just begun and said the Legislature "may amend the procedure providing for a new or special election if it deems it appropriate to do so" - but lawmakers must, whatever they do, make sure a general election for governor occurs this year.

Since it takes time to certify an election, to allow for a potential recount, it's assumed the general election would need to take place several weeks before Nov. 15, 2011.

And because the party convention method of nomination is thought to benefit some Democrats -- like Treasurer John Perdue - but not others, this could set off a round of jockeying to change the law to eliminate the conventions and hold a primary election.

During two hours of oral arguments last week ,the court expressed reservations about taking on the role of a "super legislature," as Chief Justice Margaret Workman put it.

The court did not wade far into a debate about what happens in the Senate if Tomblin is serving as governor, but it put to rest any speculation that Tomblin's dual roles as Senate president and acting governor would conflict with the separation of powers in the state constitution.

"The senate president does not cease being a constitutional officer when he or she acts as governor," the court said. "The senate president remains the senate president."

It's not clear how that will affect yet another legal challenge that may come from senators on the losing side of the Senate rule change that created the position of "acting Senate president" for Sen. Jeff Kessler, D-Marshall.

Kessler's faction, in a 21-12 vote last week, created the position to separate Tomblin from the Senate and, in essence, to strip Tomblin of all his power as a senator representing Logan County.

The court said the sole issue before it in the lawsuits over the gubernatorial election was "narrow and straightforward - when, under our law, shall a statewide public election take place to fill the current vacancy in the office of governor?"

The court, which was asked by Citizen Action Group and Cooper to order House Speaker Rick Thompson and Secretary of State Natalie Tennant to hold an election, targets its order at only Tomblin.

The court said that neither Thompson nor Tennant was responsible but that Tomblin, in fulfilling his duties as an acting governor, was obligated to call an election.

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



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