CHARLESTON, W.Va. -- State Attorney General Darrell McGraw is reviewing Secretary of State Natalie Tennant's determination that a special election to fill U.S. Sen. Robert C. Byrd's unexpired term cannot be held until 2012.
"Right now, we are looking at it to determine if it has sound legal reasoning and whether it's supported by the case law," Fran Hughes, managing deputy attorney general, said Tuesday.
On Monday, Tennant said her attorneys had determined that while state law requires a special election to fill any unexpired U.S. Senate term of 2 1/2 years or longer, a quirk in the law mandates that candidates for that term be nominated in the first primary election after the vacancy occurs.
Using that interpretation, she said the special election cannot take place this November, and in fact will take place in November 2012.
That means whoever Gov. Joe Manchin appoints to the seat would serve as U.S. senator for more than two years. The winner of the special election in November 2012 would serve for about five or six weeks, because the full six-year term for the Senate seat will also be on the November 2012 ballot. Whoever wins that term would take office in January 2013.
Hughes doubts that state lawmakers intended to have a temporary replacement serve for as long as 30 months in the U.S. Senate, as would be the case if Tennant's interpretation stands.
However, Hughes noted, "Sometimes the law doesn't lend itself necessarily to what common sense would dictate."
She said that no one from the secretary of state's office sought an opinion or requested any advice from the attorney general's office regarding an interpretation of the state law for filling U.S. Senate vacancies (W.Va. Code 3-10-3).
"Since we are the chief legal officer for the state, we were kind of taken aback by that," Hughes said.