CHARLESTON -- Acting Gov. Earl Ray Tomblin must call a special election for governor for sometime later this year, according to the state Supreme Court.

In an opinion issued Tuesday afternoon, the Court ruled that because former Gov. Joe Manchin left office more than a year before his term was to end, Tomblin has to issue a proclamation for a new election. The court said state code states that no one can serve as acting governor for more than one year.

Later Tuesday, during a brief press conference, Tomblin said he would abide by a ruling.

The Court's opinion also notes that the state Legislature has set up procedures for a new special election, requiring political parties to have nominating conventions for their candidates.

During his brief press conference, Tomblin said he would start to work with lawmakers and Secretary of State Natalie Tennant to finalize the process for having primary and general special elections.

The state senator, who began acting as governor in November, also said the current law calling for a convention must be changed.

"This new election should truly be the people's election," he said.

House Republicans already have introduced legislation outlining the primary and general election process.

How it happened

Justice Brent Benjamin, who authored the Court's opinion, called the issue "narrow" and "straightforward."

Former Gov. Joe Manchin was elected to a second four-year term on Nov. 4, 2008. That term began on Jan. 19, 2009, and is scheduled to end on Jan. 14, 2013.

Longtime U.S. Sen. Robert C. Byrd died on June 28. As a result, a special election was held on Nov. 2 to fill the Senate vacancy.

Manchin defeated Morgantown businessman John Raese for the seat. He subsequently resigned as governor and was sworn in as a U.S. senator on Nov. 15.

On the same day, Tomblin, as the state's Senate President, became acting governor.

The case, Benjamin explained, rests upon the interpretation of a provision of the state's constitution and a statute -- particularly this last line:

"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."

The Court, in its interpretation of the constitution and statute, believes the framers, "by specifically requiring an election when a vacancy occurs in the first three years of a gubernatorial term but not requiring an election if the vacancy occurs in the final year of the term, clearly intended that a person not elected to the post may act as governor for a period of no more than one year."

"Clearly, the framers contemplated that the new election must occur at such a time as will permit the person elected as governor in the new election to assume office within one year of the date that the vacancy in the office occurred," the Court continued.

'The right of the people'

The state's high court, in its 19-page opinion, said its interpretation "is consistent with the fact that our government is founded upon the right of the people to elect their highest public officials. This right is enshrined in our Constitution."

Any other interpretation, the Court added, "would be in conflict" with that right.

The petitioners in the case -- the West Virginia Citizen Action Group, South Charleston attorney Thornton Cooper, the West Virginia AFL-CIO and House Speaker Rick Thompson -- have "a clear legal right" to the relief sought, and Tomblin has a "legal duty" to do the thing "which the petitioners seek to compel," the Court said.

Tomblin had argued that current laws "clearly provide" that the election to replace Manchin as governor should be in 2012. Meanwhile, the citizens group, Cooper, the labor union and Thompson were among those who wanted a special election sooner.

Both the citizens group and Thompson had argued that Tomblin's dual role as governor and lawmaker violates the state constitution.


As to the procedure to be followed regarding the holding of a special gubernatorial election, the Court points to a portion of state code:

"If the vacancy is to be filled at a general election and shall occur before the primary election to nominate candidates to be voted for at such general election, candidate to fill the vacancy shall be nominated at such primary election in accordance with the time requirements and the provisions and procedures prescribed in article five of this chapter. When nominations to fill such vacancy cannot be so accomplished at such primary election, and in all cases wherein the vacancy is to be filled at a special election, candidates to be voted for at such general or special elections shall be nominated by a state convention to be called, convened and held under the resolutions, rules and regulations of the political party executive committees of the state ..."

Meaning, the code calls for a convention, as opposed to the usual primary election.

The Court said a convention is "within the legislative prerogative" and does not violate the state constitution.

However, the state Legislature may amend the procedure "if it deems it appropriate to do so," the Court said.

But "any new procedure may not conflict with the Constitution which requires that all acts necessary to elect a governor shall be completed within one year of the vacancy in the office," it wrote.

Many state lawmakers, including Tomblin, and other prominent state leaders already seem to agree that the law must be changed.

Sen. Jeff Kessler, D-Marshall, who is also acting as the Senate President for Tomblin, told the Charleston Daily Mail that conventions were a relic of the good old days.

The state's Republican Party Chairman, Mike Stuart, described conventions as "smoke-filled rooms filled with political elites to select our governor" in a statement released Tuesday.

And Cooper, who was one of the plaintiffs in the case, said Wednesday that conventions were "something from the past" and described them as "inconvenient."

Election timeline

As to exactly when the new statewide election shall be held, the Court said "as soon as practicable."

The Court noted that in Tomblin's proclamation he must be "cognizant" of the statutory deadlines under which Tennant's office must act.

Tennant, in a Tuesday afternoon press conference, reiterated the Court's ruling and noted that the entire election process -- including canvassing -- would have to be completed by noon on Nov. 15. That is exactly one year from the time Tomblin took over as acting governor.

She said her office was already researching how long a recount might take, so that can be taken into account.

As far as price tag, Tennant said if nominations were done according to the convention process, the three major parties -- Democratic, Republican and Mountain -- each would bear the cost of their own conventions. Counties would pay for the general election. A general election, she said, could cost $3 million to $4 million.

However, if a primary were held instead of a convention, the cost to counties would increase by another $3 million to $4 million.

Who is running

Tennant, herself, has confirmed she is running for governor.

However, she noted in her afternoon press conference that her bid would have no impact on how her office handles the election.

Tomblin, during his press conference, also confirmed he is running for the office he is temporarily overseeing.

"I am a candidate for governor and intend to win," he told reporters.

An aide to Thompson also told the Daily Mail he would run for the office.

Other rumored hopefuls include former Republican Secretary of State Betty Ireland and state Sens. Clark Barnes, R-Randolph, and Brooks McCabe, D-Kanawha.

GOP legislation

Delegate Patrick Lane, R-Kanawha, introduced House Bill 2552 on Wednesday.

It contains, he said, the framework for this year's special election
and "a long-term fix" to the gubernatorial succession laws.

Lane said the bill particularly aims to change the law to include a
primary special election, instead of the current nominating convention

He said he feels the convention process "disenfranchises" voters.

"My constituents are very clear that they want to vote in primaries to
choose their nominee," Lane said.

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