CHARLESTON -- Senate President Earl Ray Tomblin and attorney Thomas V. Flaherty, in their "uphill battle" arguing that West Virginia doesn't need to hold a gubernatorial election until November 2012, also point to the state's constitutional and election history.
Flaherty, in his oral arguments Tuesday before the West Virginia Supreme Court of Appeals, said beginning with the state's first constitution in 1863 and continuing under the current constitution, which was ratified in 1872, the document has always provided that the Senate president would fill a vacancy in the governorship if need be.
The state's first constitution provided:
"In case of the removal of the Governor from office, or of his death, failure to qualify within the time prescribed by law, resignation, removal from the Seat of Government, or inability to discharge the duties of the office, the said office with its compensation, duties and authority, shall devolve upon the President of the Senate; and in case of his inability or failure from any cause to act, on the Speaker of the House of Delegates. The Legislature shall provide by law for the discharge of the Executive functions in other necessary cases."
The language of that section was revised and ratified as part of the state's second constitution in 1872, which is still in effect today:
"In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy."
Flaherty argued that, contrary to the petitioners' position, nowhere in the current constitutional provision is there any reference to when the new election for governor shall take place. It simply calls for a new election, he said.
He also points to the change in when elections are held.
Prior to 1872, he said, elections were held yearly. Then, the federal government, and eventually the West Virginia Legislature, went to biennial elections. This doubled the terms of delegates from one year to two and increased the terms of state senators.
"So the election would've been this November, but the Legislature made it so we have biennial elections," Flaherty explained.