CHARLESTON, W.Va. -- Acting Gov. Earl Ray Tomblin faces an "uphill battle" by arguing the state doesn't need to hold a gubernatorial election until 2012, state Supreme Court Chief Justice Margaret Workman told Tomblin's attorney during two hours of oral arguments Tuesday afternoon.
Tomblin, who is acting governor by virtue of being Senate president, contends 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 say the state constitution - which overrides any state law - was not written with such a long period of service by a Senate president in mind.
When there's a vacancy in the Governor's Office, the constitution calls for a new election to be held, though it does not say when.
Justice Brent Benjamin asked Tomblin's attorney Tom Flaherty what the constitution means by "new."
"New" doesn't mean "special," Flaherty replied, meaning no extra election is called for.
"It doesn't mean 'long election,' either," Benjamin replied.
Because of when Joe Manchin left the Governor's Office to join the U.S. Senate, the current law does not call for an election until November 2012. Tomblin's position is there should be two governors elected on Election Day 2012, one for a weeks-long term to fill out Manchin's term and another to serve the next four-year term that begins in January 2013.
While the arrangement has raised eyebrows, the Supreme Court seemed cautious about deciding when the state should hold elections, a job the constitution assigns to the Legislature.
But both Citizen Action Group and Cooper argue that the Legislature has created an absurd situation by writing a law that allows an unelected governor to serve so long.
Flaherty conceded that people could see that as an absurd result, but said minutes later that the several-week term nevertheless was what lawmakers put in place.
"It's not an absurd result," he said. "It is what it is."
While the justices said they were reluctant to step in, they also at times indicated they wouldn't hesitate if they needed to.
After Flaherty explained why the current law complies with the constitution, Justice Menis Ketchum said, "That's the Legislature's interpretation in a statute that is meaningless and unintelligible."
Kathryn Bayless, Citizen Action Group's attorney; Cooper; Anthony J. Majestro, the attorney for House Speaker Rick Thompson; and AFL-CIO attorney Pat Maroney also all suggested that the political jockeying in the Senate had rendered the Legislature unable to act on their own to change the law.
"We have already spent a fair amount of time waiting to get relief," said Cooper, who warned officials in August - even before Manchin won the election - that he would sue them if they did not change the law to call for an election in 2011.
The justices at times sympathized with this point.
Benajmin asked Cooper why the court, which meets and decides cases behind closed doors, should decide when an election is, rather than the relatively transparent Legislature.
Before Cooper could fully answer, Workman asked, "Because they might not get it right?"
Justice Thomas McHugh jumped in moments later to ask whether the Legislature can be "trusted" to pass new election legislation.
"Are you saying they don't have the responsibility to do that?" McHugh asked Cooper.
"I'm saying they don't have the incentive to do that," Cooper replied.