CHARLESTON — Members of West Virginia’s Supreme Court questioned Tuesday whether ordering a special election for governor this year would violate the constitutional separation of powers and intrude upon a duty of the Legislature.

But the justices also noted that the constitution calls for a “new” election if the chief executive’s office becomes vacant before the first three years of the term expire.

Joe Manchin, a Democrat, had more than two years left in his term as governor when he assumed his new office as U.S. senator in November. Senate President Earl Ray Tomblin then began to serve as acting governor, as set out in the state constitution.

Tomblin, D-Logan, contends that state law does not allow a vote for governor until the next general election, which is scheduled for 2012 and when the office is already up for a new term. That conclusion, which would effectively keep Tomblin in the governor’s seat until then, prompted the pending legal challenge from West Virginia Citizen Action Group and Kanawha County lawyer Thornton Cooper.

Kathryn Bayless, representing Citizen Action, asked the court to order a special election by a certain date. Cooper, meanwhile, wants a decision by Friday that sets a March primary and a May general election.

Citing state law, each plaintiff also noted the possibility of a convention instead of a primary. Both focused on how the constitution appears to make an issue of whether at least a year remains in the vacated term.

“You cannot have a new election if it’s two years down the road,” Cooper said.

With Preston Circuit Judge Lawrence Miller sitting in for a recused Justice Robin Davis, the court pressed both lawyers on whether the rulings they sought would amount to legislating from the bench.

“This court is also concerned about separation of powers in terms of what this court does in relation to the Legislature or to the executive branch,” Justice Thomas McHugh told Bayless. “You, may be, and others may be seeking to enact a law that is more appropriately left to the Legislature.”

“Election cases are a special breed, if you will,” she responded. “We have a need for speedier relief here.”

The challenge targets Tomblin, House Speaker Rick Thompson as the leader of that chamber, and Secretary of State Natalie Tennant as West Virginia’s chief elections officer. The state AFL-CIO has intervened in the case.

Tennant offered no position on the question. The union and Thompson agree that a 2011 election is required. Thompson, D-Wayne, seeks a general election this November, his lawyer, Anthony Majestro, told the court.

Majestro noted that elections were held annually when the state ratified its constitution in 1872. That has since changed. He said the court could interpret the constitution with that history in mind, and still allow lawmakers to reset a primary date to ensure election law calendar deadlines and time periods are honored.

“If you rule, you get a resolution of the problem that doesn’t require any further legislative action, but respects the Legislature’s ability to come up with another constitutional solution,” Majestro said.

But Tom Flaherty, representing Tomblin, countered that the state faces no problem or dilemma if an election isn’t held until next year. He said the constitution envisioned and allows for changes to the time between elections.

“It is clear that a new election doesn’t mean a special election,” Flaherty said. “This court can’t determine the timing of elections, or the manner of elections. That has to be the Legislature.”

Tomblin’s legal analysis would set two elections for governor in 2012: one for the few months remaining in the vacated term, and one for the new, four-year term. The justices asked whether that would produce an absurd result.

Flaherty cited examples of brief terms in other states to argue otherwise. He urged the court to scrutinize instead the plaintiffs’ argument that Tomblin can’t act as governor for more than one year.

“To say that it violates the separation of powers after an extended period of time makes no sense to me,” Flaherty said. “If there’s a separation of powers problem, it exists from day one and moment one. If it is, we have no executive branch of governor, we are rudderless, we have no governor. That makes no sense. That is the absurd result.”

The two-hour hearing also touched on the potential field of candidates for governor, whenever an election may occur. It includes Thompson, Tomblin, Tennant and Sen. Jeff Kessler, D-Marshall, who seeks to serve as acting president while Tomblin is carrying out the chief executive’s duties.

The 80th Legislature begins the first of its two annual, 60-day regular session on Wednesday. The Senate is slated to convene and then consider a proposed rule change that would allow its members to elect an acting president.

Justice Brent Benjamin repeatedly noted during Tuesday’s hearing that the constitution does not recognize such an office. Majestro said the chance of a conflict emerging in the Senate should prompt the court to rule on the election question.