THEIR VIEW: Gubernatorial succession controversy looms

By The West Virginia Record | Nov 5, 2010

By HOPPY KERCHEVAL

MORGANTOWN -- Gov. Joe Manchin's election Tuesday has filled the vacancy created by the death of Sen. Robert Byrd last summer, but it also opened a vacancy in the Governorship that's producing questions and controversy.

Manchin will likely head to Washington soon after the election results are certified, probably within two weeks. The state Constitution and state law provide that the Senate President -- in this case Logan County Democrat Earl Ray Tomblin -- becomes the Acting Governor.

That much is certain. But the biggest question is how long will Tomblin serve as Acting Governor?

The state Constitution (Article 7, Section 16) reads, "Whenever a vacancy shall occur in the office of Governor before three years of the term shall have expired, a new election for Governor shall take place to fill the vacancy."

Noticeably absent from the language is when that election shall be held.

State law (WV Code 3-10-2) seems to suggest that the special election would not have to be held until November 2012. That's clearly the preference of Tomblin because it means he could serve as Governor for two years before he has to run.

However, that sets up a scenario where citizens would vote twice for Governor in the 2012 election: once for someone to fill out the two months left in the term and a second time for a candidate to serve the next four year term.

Could the authors of the state Constitution have envisioned that odd scenario? It doesn't seem likely. In fact, WVU Law School Professor and state Constitutional expert Bob Bastress says that interpretation makes no sense.

Bastress says where there is conflict between state law and the state Constitution, it's the Legislature's responsibility to fix it. That means Gov. Manchin, or perhaps Acting Governor Tomblin, calling lawmakers into special session.

However, the word from under the capitol dome is that there is no agreement between Tomblin and House Speaker Rick Thompson on how to proceed. That situation is made even more difficult by the fact that Thompson also wants to be Governor.

There's also some talk of the issue being taken before the state Supreme Court, and it may end up there. But this is clearly a dispute that is ripe first for the state's legislative branch to resolve.

Republicans have thrown their support behind a special election in 2011. Second District Congresswoman Shelley Moore Capito said on Metronews Talkline Wednesday that the parties could have primaries in January and the special election a couple months later.

State GOP Chairman Mike Stuart agrees.

"Regardless what voters think of State Senator Earl Ray Tomblin, they deserve to be able to choose their leader -- not be saddled with an unelected seat filler for two full years," Stuart said.

West Virginia is coming off a spirited election for Byrd's replacement. More than 522,000 West Virginia voters felt strongly enough to go to the polls Tuesday to pick someone to fill the remaining two years of Byrd's term.

Voters should have an opportunity to do the same now for the two years left in the Governor's term.

Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday.

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