If Manchin wins, Cooper still plans to sue over succession laws

CHARLESTON -- South Charleston lawyer Thornton Cooper says he still plans to sue West Virginia officials if they don't clean up the state's succession laws.

That is, of course, if Gov. Joe Manchin, who secured the Democratic nomination for U.S. Senate in Saturday's primary, wins in November.

"I'm not going to bring a lawsuit unless Gov. Manchin is elected to the Senate," Cooper said on Wednesday.

"If I jump the gun and file something before Election Day, the state Supreme Court would say it wouldn't be right."

Any litigation, on his part, would not take place until after Election Day, he said.

Until then, Cooper is focused on his run for Kanawha County Clerk and his responsibilities as part of the Kanawha County Democratic Party Executive Committee.

"My primary focus is getting elected and helping fellow Democrats get elected," he said. "Until then, I'm going to be doing research on the matter. But really, it's in the voters' hands now. It's up to voters. They make the decisions. And by no means is (Manchin winning the election) a foregone conclusion."

Cooper pointed to a recent Rasmussen Reports survey that shows Manchin with a slimmer-than-expected lead in the November special election to fill the late Sen. Robert C. Byrd's seat.

According to Rasmussen, Manchin was expected to coast to victory due to his 70 percent approval numbers and near-universal name recognition.

However, the poll results now show him beating Republican opponent and Morgantown businessman John Raese by only six points, 48 percent to 42 percent.

The Rasmussen survey suggests the race has become closer because 70 percent of West Virginians say they disapprove of President Barack Obama -- one of the president's highest negative ratings in any state.

According to the Charleston Daily Mail, Senate President Earl Ray Tomblin, who would become acting governor should Manchin win in November, believes state law does not mandate sending voters to the polls until the next regular election cycle in 2012.

If that were the case, there would be two governors' races going on at once -- one for the remainder of Manchin's unexpired term and another for the next full four-year race that starts in 2013, the Daily Mail reports.

Several state lawmakers disagree with Tomblin's plan, many believing it simply would give him a leg up in an open Democratic field.

Cooper views Tomblin's plan as "absurd" and having an "unconstitutional outcome." Instead, he is calling for new legislation to require a special primary within 90 days after a gubernatorial vacancy and a special general election for governor within 150 days.

The South Charleston lawyer points to article 7, section 16 of the state's constitution -- the very last sentence, to be exact -- that a "prompt" election must be held.

"I think it's very clearly worded," he said of the passage.

Cooper said he believes state code is inconsistent with the constitution and that the constitution trumps state code.

He has suggested Manchin call a special session of the Legislature to clarify state law regarding gubernatorial vacancies.

But if state officials don't act, Cooper's case could end up in the state Supreme Court.

Last month, as required by state law, Cooper filed a 30-day notice of his intent to sue if there is not a timely election to fill the vacancy.

Notice was sent to Tomblin, D-Logan, Speaker of the House Richard Thompson, D-Wayne -- next in the line of succession behind Tomblin -- Attorney General Darrell McGraw, Secretary of State Natalie Tennant and Manchin.