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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.

She said it is also possible other interested parties may challenge Tennant's decision.

"This may end up being reviewed by the courts again," she said.

In 1994, the state Supreme Court rejected an effort by the state Republican Party to require a special election to fill an unexpired term on Kanawha Circuit Court, citing the same primary election requirement in the state code.

Also Tuesday, Kanawha County Commission President Kent Carper became the first prominent Democrat to call for a special election for the unexpired term.

Carper said a 21/2-year term is "excessive" for a temporary appointee.

"That's longer than the term of someone who is elected to Congress [the U.S. House] by six months," he said.

If nothing else, he said a special legislative session should be called to "correct" the law, as the Massachusetts General Assembly did following the death of Sen. Ted Kennedy.

"To me, there ought to be an election, so there can be accountability," Carper said. "I'm convinced it could be accomplished, if there is a will to do it."

@tag:Reach Phil Kabler at ph...@wvgazette.com or 304-348-1220.