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Unions seek speedy election for governor

CHARLESTON, WVa. -- Two of West Virginia's largest unions on Wednesday called for a speedy election for governor.

The West Virginia AFL-CIO and the West Virginia Education Association filed separate briefs Wednesday with the state Supreme Court arguing that Senate President Earl Ray Tomblin's current plan to serve as governor until 2012 is unconstitutional.

They both are asking to intervene in an ongoing case filed by the West Virginia Citizens Action Group. The group also raises questions about Tomblin's election timeline and calls for an election sooner rather than later.

But the AFL-CIO also raised a number of additional issues about Tomblin's powers and duties while he serves as both governor and Senate president.

The union said the court needs to provide "legal certainty" on many of these never-before-answered questions about the separation of powers between the legislative and executive branches that Tomblin now straddles.

For instance, does Tomblin sign a bill that passes the Senate, a traditional duty of Senate president, and then sign it again as governor? Some have suggested that without answers to such questions, any law Tomblin signs could be challenged in court, including criminal statutes.

Without certainty, the AFL-CIO predicts "expensive and destructive " legal chaos.

"During the period of time from December 2010 until November 2012, there will be two regular sessions of the West Virginia Legislature, at least two budget extra sessions, one special session for federal and state legislative redistricting, and most likely additional special sessions," the union's 12-page brief said.

"The approval or vetoing of legislation enacted during these sessions, as well as appointments of state officials, legislators and judges by a sitting senator acting as governor, many of which require Senate approval, is an invitation for serious additional constitutional challenges which may prove to be expensive and destructive of the efficient and reasonable operation of the state in conducting its normal business affairs."

Tomblin's office did not have immediate comment Wednesday evening. The deadline for his official legal response to the Supreme Court case is not until later this month.

But supporters of the track Tomblin has taken are likely to make two arguments to show he is doing the right thing. First, they will be disputing as irrelevant the separation-of-powers questions and also dismissing calls that a speedier election is necessary.

They are likely to point out that the constitution itself calls for the Senate president to "act as governor." They may argue that the constitution cannot be unconstitutional.

Second, state law does not seem to require an election before 2012. That is an opinion that is almost universally accepted.

The question is whether or not the law is trumped by the constitution, which requires an election to held if there is a vacancy in the governor's office before the end of the third year of the four-year term. The constitution does not say exactly when that election should be.

Also, the Tomblin camp may suggest that the people stirring the pot have their own motives.

It's not clear with whom the unions are aligned. The AFL-CIO is thought to prefer a candidate other than Tomblin sitting in the Governor's Office - perhaps House Speaker Rick Thompson or Treasurer John Perdue.

One clue may be found in the AFL-CIO brief.

The union asks that the court strike down the existing timeline in the law that doesn't require an election right away. The union argues the constitution calls for a speedier election.

However, the union goes out of its way to suggest that justices can keep another provision in the same law that calls for the Democratic and Republican parties to select their nominees for a special gubernatorial election in party conventions rather than through a statewide primary election.

Such a scenario is thought to favor Perdue, a candidate who has built a strong relationship with county party officials.

The union said the provision is designed to save money by shifting the cost burden of selecting party nominees from the taxpayers to the parties. The cost of the special election for U.S. Senate, for instance, is expected to be at least $3 million. The Secretary of State's office is expected to release exact figures today.

The WVEA said it would have filed its brief regardless of who was acting governor. It refers to Tomblin an "ex officio substitute" for governor. Ex officio is a Latin word for to a person who serves in one capacity as a result of holding another office.

The teacher organization also questioned whether an acting governor is democratically accountable to voters. The WVEA filing said it doesn't make sense to hold an election if the Senate president is acting as governor for less than a year. But if the vacancy is longer, the union said there needs to be a quick election.

"Beyond the one-year line, the democratic benefits of statewide election, instead of the short-term position of an acting governor, is required," the WVEA's staff attorney Jim Haviland wrote in a four-page brief.

"In that manner the burdens and pressures of the office will be shouldered for nearly two years by a governor specifically elected on a statewide basis. This court should order an election. Such an election will not happen otherwise."

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


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