The Register-Herald, Beckley, West Virginia

July 2, 2010

Byrd succession status remains question mark

By Mannix Porterfield
Register-Herald Reporter

BECKLEY — Questions surrounding his successor abound in the wake of Sen. Robert C. Byrd’s death, and one key aspect remains under a cloud of uncertainty — a potential move to alter West Virginia law for a special election this year.

Republicans want one, sensing the national mood is ripe for them to grab a key seat in Congress, but so far, Gov. Joe Manchin has shown no inclination to ask for one when lawmakers return July 19 for a special session.

Until shown otherwise, an aide says, Manchin is in sync with Secretary of State Natalie Tennant’s position that the law calls for no election until 2012, but the issue has been taken up by the attorney general’s office.

“We’re working on it,” Deputy Attorney General Fran Hughes said, but emphasized no ruling would come from her office before next week at the earliest.

“I think everybody is focused now to putting Sen. Byrd to rest. A lot of people are coming to show their respect.”

There have been rumblings this week about a change in Manchin’s education agenda during July interims to include a change in the State Code so that Byrd’s seat would be filled via a special election, but legislative leaders insist there has been no such talk from the governor.

“Mostly water cooler talk at this point,” Senate Judiciary Chairman Jeffrey Kessler, D-Marshall, said Thursday.

“There has been no formal discussion of a special session to allow a 2010 election to fill Sen. Byrd’s vacancy and I expect no such dialogue until after the memorial/funeral services conclude on Friday.”

In fact, the only such talk has been generated by Charleston Mayor Danny Jones in a newspaper interview.

“I don’t think there’s been a decision one way or another about whether that will take place,” said Ramie Barker, a spokesman for Senate President Earl Ray Tomblin, D-Logan.

“I think that’s a question yet to be determined.”

Tennant told reporters this week she interpreted the law to mean two elections would be needed in 2012 — one to finish the final six months of Byrd’s term, the other to pick a senator for a full, six-year term.

Sara Payne Scarbro, director of communications for the governor, said Manchin concurred with Tennant’s interpretation and emphasized he wouldn’t appoint anyone to succeed Byrd until at least Wednesday. Speculation has mounted on the person Manchin has in mind.

Does he have a short list?

“If he has, he’s not sharing it,” Scarbro quipped.

Barker agreed all the speculation about Byrd’s replacement and legislative action should wait until Byrd is laid to rest beside his wife Erma.

“We need to have a period of time where we can grieve the loss of this great man,” he said.

“A lot of us knew him personally, so it was a personal loss to many people in West Virginia. To sit here and speculate about all this stuff — it just cuts against what I think West Virginians are really all about.”

Scarbro said the legal minds in Manchin’s office reviewed the State Code and concurred with Tennant, but added the governor is open to any suggestions advanced by legislative leaders.

Kessler said he is willing to look at both short- and long-term solutions to succession issues and not limiting them to the Byrd matter. In fact, only last month, Kessler said he conferred with House Judiciary Chairman Tim Miley, D-Harrison, and the two asked both Tomblin and House Speaker Rick Thompson, D-Wayne, to review the laws because of ambiguities that arose after the death of Senate Minority Leader Don Caruth, R-Mercer.

“I agree that having a dual 2010 U.S. Senate ballot with a six-week term and a six-year term creates a bizarre and certainly unintended situation,” Kessler said.

Kessler intends to have his staff next week identify “potential ambiguities” that demand legislative attention and take up any such concerns with Tomblin or his counsel.

Reached on vacation in North Carolina’s Outer Banks, Delegate Rick Moye, D-Raleigh, said he likes the idea of changing the law to allow for a special election this year, calling it “a good idea.”

“Any time the people can vote on someone and the people get to decide who is representing them, I think that’s a better choice than somebody being appointed by one person,” Moye said.

Manchin wouldn’t be required to leave the governorship if he seeks the Senate seat, but if he ran and won, Tomblin would succeed him.

No matter how the dice land, Kessler said his future plans wouldn’t be affected. Kessler is the only formal candidate in the race for governor in 2012, having made the decision to run in April 2009.

Delegate Virginia Mahan, D-Summers, likewise hasn’t heard any talk of expanding the special July session to include election laws, “but things could change.”

“The fact that the attorney general may view the situation differently than the secretary of state is not surprising, but could trigger some legislative action, which is — just my opinion now — likely,” the veteran lawmaker said.

“All these administrative offices have good lawyers of their own. If the governor asks the Legislature to ‘fix’ a problem with the election law, and it sounds like there is one, then we should do it. These things are too important to be left to doubt. But even if the call is amended and we have a relatively simple fix by having a special election, speculation on this issue will likely not stop.”

Republicans are champing at the bit for a special election this year.

“The climate is right for a Republican candidate at this time,” state Chairman Doug McKinney said.

“It just doesn’t seem fair that one person could appoint someone to represent the entire state for the next two years. We just don’t think that’s right.”

McKinney agrees with Manchin’s staff that Tennant made the proper interpretation but said the real question is whether that law can pass constitutional muster. To clarify that, the state GOP has asked its national lawyers for some legal advice, but McKinney said the Republicans aren’t likely to take any action in federal court since most are occupied by Democrats.

“We’re not going to do anything until after Byrd’s funeral,” he said. “We just don’t think it’s the right thing to do until he’s laid to rest.”

Democrats are eyeing all options without settling for the moment on a course of action, state Chairman Larry Puccio said.

“We’re sitting back and looking at all options available, because there are some different options,” he said.

One possibility is a legal challenge to let the courts interpret the law, given its ambiguities, he said.

“And the other possible position is to take it to the Legislature for them to clean it up in a special session,” he said.

“So we’re really listening and looking at all options to be able to come up with a position or a direction we’d like to go. But we want to do whatever is best for the people. We really believe the more input the citizens have, the better off we are.”

— E-mail: mannix@register-herald.com