After Senator Robert C. Byrd's death in 2010, did the Governor of West Virginia have legal authority to call a special election to fill the rest of his Senate term, and on what timetable?
Plain-English summary
Senator Robert C. Byrd, the longest-serving member of the United States Senate in history, died on June 28, 2010. His unexpired term ran more than two years and six months. Governor Manchin asked the Attorney General whether he could call a special election in 2010 to fill the seat, or whether voters had to wait for the regular 2012 election cycle.
AG Darrell McGraw concluded the Governor had the authority to call a special election. The reasoning ran in three steps:
- The Seventeenth Amendment requires that Senate vacancies be filled by election. State law can authorize a governor to make a temporary appointment "until the people fill the vacancies by election," but it cannot replace the election entirely. Any West Virginia statute about Senate vacancies must be read to give effect to that constitutional command, not to undercut it.
- W. Va. Code § 3-10-3 contains a bright line. If the unexpired term of a U.S. Senator (or other statewide officer) is two years and six months or less, the appointment fills the rest of the term. If the unexpired term is longer than that, the appointee serves only until a successor is elected and qualified. Senator Byrd's term ran longer than two years and six months at the time of his death, so the appointment could only be temporary.
- The statute authorizes the Governor to proclaim the election and necessarily to set its parameters. The AG read the phrase "Proclamation of any election to fill an unexpired term is made by the governor of the state" as a freestanding grant of authority. The Governor must call the election. Without the ancillary power to set the date, filing deadlines, campaign finance rules, and other procedures, the proclamation power "would be meaningless."
The AG specifically pushed back on the Secretary of State's contrary position. The Secretary had relied on State ex rel. Robb v. Caperton (1994), which addressed a circuit court vacancy. The AG read Robb as limited to state offices and inapplicable to the U.S. Senate, which is governed by the Seventeenth Amendment.
The opinion suggested that, given the constitutional and timing pressures, a special primary election should be held in advance of the November 2010 general election, and that the Governor should adapt the existing Election Code provisions where necessary, while attending to minority-party participation and absentee voting (including UOCAVA voters in the military and overseas).
Currency note
This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: How was the 2010 Byrd-vacancy election ultimately handled in West Virginia?
A: The historical record shows that Governor Manchin signed legislation establishing a special election in 2010, ran for the seat himself, and was elected to fill the remainder of Senator Byrd's term. This opinion supplied the legal framework that allowed the special election to proceed.
Q: What is the bright line in W. Va. Code § 3-10-3 for U.S. Senate vacancies?
A: For U.S. Senate vacancies (and most other statewide offices), if the unexpired term is shorter than two years and six months, the governor's appointee fills the rest of the term. If the unexpired term is longer than two years and six months, the appointee serves only until a successor is elected at the next primary and general election cycle.
Q: Why is the Seventeenth Amendment so central to this opinion?
A: Before the Seventeenth Amendment, U.S. Senators were chosen by state legislatures. The Amendment moved Senate selection to direct popular election and provided that vacancies "shall" be filled by election, although the legislature can authorize gubernatorial temporary appointments "until the people fill the vacancies." The AG read this as requiring courts and state officials to construe state statutes to favor election over indefinite appointment.
Q: Did the AG decide that the Governor could pick the election date himself, or that the regular cycle had to apply?
A: The AG concluded that "the date of the special election may be set by the Governor in the proclamation," because without that ancillary power the express proclamation authority would be meaningless. The AG suggested timing the special primary to maximize candidate preparation and voter participation, including for active-duty service members.
Q: Why was the Robb case not controlling?
A: Robb dealt with a circuit court vacancy, which is a state office governed by the West Virginia Constitution. The Robb syllabus points reference only state constitutional provisions, not the Seventeenth Amendment. The AG read Robb's discussion of the Seventeenth Amendment as dictum addressed to a different question (whether federal constitutional law had ever invalidated state vacancy procedures), not as binding precedent on the Senate-vacancy question.
Q: Can a governor's proclamation set new filing deadlines and campaign finance rules?
A: The AG said yes, "necessarily" so. The proclamation power must include the authority to set the parameters of the election, applied as closely as possible to the existing W. Va. Code § 3-1-1 et seq. with necessary modifications.
Background and statutory framework
The Seventeenth Amendment, ratified in 1913, sets the U.S. Senate vacancy procedure. The text directs that "the executive authority of such State shall issue writs of election to fill such vacancies," and allows the state legislature to "authorize the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Federal courts have consistently read the Amendment as preferring election over open-ended appointment. See Jackson v. Ogilvie (7th Cir. 1970) and ACLU v. Taft (6th Cir. 2004).
W. Va. Code § 3-10-3 is the statute that the West Virginia Legislature has used to "direct" how Senate vacancies are filled. Its text provides for a gubernatorial appointment in all instances, but distinguishes between two scenarios: if the unexpired term is short (less than two years and six months for non-judicial offices, less than two years for judicial offices), the appointee fills the rest of the term, and if it is longer, the appointee serves only until a successor is elected at the next primary and general election. The statute then says: "Proclamation of any election to fill an unexpired term is made by the governor of the state." The AG read that final sentence as a freestanding grant of proclamation authority.
The interpretive ambiguity arose because § 3-10-3 was written for ordinary four-year offices like Secretary of State, where a vacancy in an even-numbered year fits cleanly into the next regularly scheduled primary. A six-year Senate term (or a longer judicial term) creates a "coverage gap" if a vacancy arises after the regular primary but with too much time left for an appointment to fill the remainder. In that gap, the AG concluded, a special election must be called, both because the statute says the Governor "shall" proclaim such an election and because the alternative (a four-plus-year appointment) would conflict with the Seventeenth Amendment.
The AG applied three statutory-construction principles: (1) statutes should be read to give effect to legislative intent (Burgess v. Moore; Smith v. State Workers' Compensation Commission); (2) where two readings are possible, courts prefer the one that preserves constitutionality (State ex rel. Frazier v. Meadows; State ex rel. Slatton v. Boles; Board of Education v. Board of Public Works); and (3) absurd readings should be avoided in favor of reasonable ones (Coal and Coke Ry v. Conley; United Bank v. Stone Gate Home). Each principle pointed toward authorizing a special election.
The opinion also explicitly addressed the political-policy backdrop. The AG observed that "no one has advocated the appointment of United States Senators for almost a century," contrasting it with the ongoing debate about appointed versus elected judges, and used that to emphasize why the Seventeenth Amendment cuts decisively in favor of an election in this context.
Citations and references
Constitutional and statutory provisions:
- U.S. Const. amend. XVII (popular election of Senators)
- W. Va. Const. art. VII, § 4 (syllabus points)
- W. Va. Code § 3-1-1 et seq. (Election Code)
- W. Va. Code § 3-1-2 (Election Code applies to special elections)
- W. Va. Code § 3-10-3 (vacancies in state offices and U.S. Senate)
Cases:
- Wesberry v. Sanders, 376 U.S. 1 (1964)
- Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir. 1970)
- ACLU v. Taft, 385 F.3d 641 (6th Cir. 2004)
- Valenti v. Rockefeller, 292 F. Supp. 851 (W.D.N.Y. 1968), aff'd, 393 U.S. 404 (1969)
- Judge v. Quinn, 7th Cir. June 16, 2010
- State ex rel. Robb v. Caperton, 191 W. Va. 492, 446 S.E.2d 714 (1994)
- State v. O'Brien, 141 W. Va. 662, 91 S.E.2d 865 (1956)
- Burgess v. Moore, 685 S.E.2d 685 (W. Va. 2009)
- State ex rel. Frazier v. Meadows, 193 W. Va. 20, 454 S.E.2d 65 (1994)
Source
- Landing page: https://ago.wv.gov/media/18136/download?inline
- Original PDF: https://ago.wv.gov/media/18136/download?inline
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
State of West Virginia
Office of the Attorney General
Darrell V. McGraw, Jr., Attorney General
Charleston 25305
(304) 558-2021 / Fax: (304) 558-0140
July 8, 2010
The Honorable Joe Manchin III
Governor
State Capitol
1900 Kanawha Boulevard, East
Charleston, West Virginia 25305
Dear Governor Manchin:
I have received your letter of July 7, 2010, which requests the Attorney General's written opinion and advice upon certain questions of law:
Is the Governor of West Virginia legally authorized to proclaim a special election to fill the remainder of the unexpired term in the United States Senate created by the untimely passing of the great United States Senator Robert C. Byrd?
If the answer to question number one is "yes," when may such special election, as proclaimed by the Governor, lawfully occur?
If the answer to question number two is that a special election may occur prior to the election cycle set forth in law for the year 2012, what law governs the conduct of such special election, especially with regard to election procedures, nominations, filing deadlines, campaign finance, etc.?
Our opinion, and specific answers to the questions posed, are as follows.
I. OPERATIVE FACTS
On June 28, 2010, the Honorable Robert C. Byrd, D-West Virginia, longest-serving member of the United States Senate in that body's history, passed away, creating a vacancy in his senatorial office. At the time of Senator Byrd's death, his unexpired term exceeded two years and six months in length.
II. CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE
Amendment XVII. Popular election of Senators
The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.
When vacancies happen in the representation of any state in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies; Provided, That the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
U.S. Const. amend. XVII.
§ 3-10-3. Vacancies in offices of state officials, United States senators and judges
Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals or in any office created or made elective to be filled by the voters of the entire state, judge of a circuit court or judge of a family court is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, the appointment is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term. Proclamation of any election to fill an unexpired term is made by the governor of the state and, in the case of an office to be filled by the voters of the entire state, must be published prior to the election as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication is each county of the state. If the election is to fill a vacancy in the office of judge of a circuit court or judge of a family court, the proclamation must be published prior to the election as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication is each county in the judicial or family court circuit.
W. Va. Code § 3-10-3.
III. DISCUSSION
We begin and end with the fundamental proposition that "[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
West Virginia Code § 3-10-3 provides for the filling of "[a]ny vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals or in any office created or made elected to be filled by the voters of the entire state, judge of a circuit court or judge of a family court . . . ." The statute contains a bright line governing when a vacancy may be filled by appointment for the entire remaining term of the former officeholder, rather than by election:
If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, the appointment is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.
That bright line, two years for a judge, two years and six months for all other offices, has been in the statute for more than eighty years.
The statutory language and procedure are entirely straightforward where a vacancy occurs in an office with a four year term, to-wit, secretary of state, auditor, treasurer, attorney general or commissioner of agriculture. However, West Virginia Code § 3-10-3 contains an inherent ambiguity where a vacancy occurs in an office with a longer term, to-wit, judge of the supreme court of appeals (twelve years), circuit or family court judge (eight years), or United States Senator (six years). Where a vacancy arises in one of those offices in an even-numbered year, after a regularly scheduled primary election but while the length of the unexpired term still exceeds two years (judge) or two years and six months (United States Senator), there is a "coverage gap" in the statute. Specifically, if would-be candidates for election to the vacant office must wait for the next primary election, the individual holding the seat pursuant to appointment will necessarily hold it for more than two years (judge) or two years and six months (United States Senator), the bright-line periods of time for an appointment to the entirety of the remaining term.
With respect to the judicial offices, the ambiguous provisions of West Virginia Code § 3-10-3 must be construed in light of the West Virginia Constitution, since these are purely state offices. (See State ex rel. Robb v. Caperton, 191 W. Va. 492, 446 S.E.2d 714 (1994), discussed infra.) With respect to the office of United States Senator, however, the statutory provisions must be construed in light of the United States Constitution, and, specifically, United States Constitution, Amendment XVII.
The clear purpose of the Seventeenth Amendment was to give effect to the direct voice of the people in the selection of their Senators. See Sen. Rep. No. 961, 61st Cong., 1st Sess. (1911). The plain language of the provision mandates that vacancies occurring in the United States Senate be filled by election, with the Governor of a state ("executive authority") being directed to issue a writ of election. Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir. 1970); ACLU v. Taft, 385 F.3d 641, 649 (6th Cir. 2004).
State legislatures have wide decision-making authority to determine a state's procedures to "empower the executive thereof to make temporary appointments until the people fill the vacancies by election . . . ." E.g., Valenti v. Rockefeller, 292 F. Supp. 851 (W.D.N.Y. 1968), aff'd, 393 U.S. 404 (1969); Judge v. Quinn, No. 09-2219, 2010 WL 2652204 (7th Cir. June 16, 2010). However, any state statute governing the procedures for filling a senatorial vacancy, such as West Virginia Code § 3-10-3, must be construed in aid of the Seventeenth Amendment, not in derogation thereof.
In short, the statute must be construed to embody the principle of popular sovereignty, i.e., the people's right to vote. "We believe it to be the policy of the lawmakers of this State to permit the voters generally to participate in the selection of candidates for all offices in primary elections, whenever possible . . . ." State v. O'Brien, 141 W. Va. 662, 673, 91 S.E.2d 865, 876 (1956).
At this point, we would be remiss in not addressing a contrary position which has been posited by the Secretary of State. Her analysis, we believe, gives insufficient weight to the dictates of Seventeenth Amendment, and instead relies primarily upon the case of State ex rel. Robb v. Caperton, 191 W. Va. 492, 446 S.E.2d 714 (1994), a case involving a circuit court vacancy, not an office within the ambit of the Seventeenth Amendment.
Pursuant to the West Virginia Constitution, art. VIII, § 4, points of law in a Supreme Court of Appeals case are articulated through syllabus points affixed to the Court's opinions. E.g., State ex rel. Medical Assurance of West Virginia, Inc. v. Recht, 213 W. Va. 457, 583 S.E.2d 80 (2003); Tweed v. Racing Commission, 138 W. Va. 531, 76 S.E.2d 874 (1953). In Robb, the seven syllabus points affixed to the opinion deal solely with vacancies in "office of justice of Supreme Court or judge of circuit court . . .," and the only constitutional provisions cited are West Virginia Constitution, art. IV, §§ 7 and 8 (general provisions governing election of state and county officers), and West Virginia Constitution, art. VIII, § 7 (general provisions governing election of justices and judges).
Further, the Court's discussion of the Seventeenth Amendment in the body of the opinion dealt with a question not presented here, specifically, the existence (or not) "of any federal constitutional attack that has been made successfully on a state's constitutional or legislative enactment for filling vacancies in state offices." Robb, 191 W. Va. at 497, 446 S.E.2d at 719 (emphasis supplied).
Thus, the Robb opinion does not provide a basis for decision in this situation. Even the policy considerations (although outside the scope of this opinion) are different; although many individuals and groups advocate the appointment rather than election of judges, no one has advocated the appointment of United States Senators for almost a century.
Additionally, the Secretary of State's opinion would appear to "read out" the unambiguous statutory language providing that "[p]roclamation of any election to fill an unexpired term is made by the governor of the state . . . ." W. Va. Code § 3-10-3. Said language clearly empowers the Governor to call a special election where, as here, a vacancy occurs after the regularly scheduled even-year primary election but outside of the statutory limit for an appointment.
It is the opinion of the Attorney General that where there exists a vacancy in a United States Senate seat, West Virginia Code § 3-10-3 reflects a clear intention on the part of the West Virginia Legislature to uphold our citizens' rights under the Seventeenth Amendment. The Amendment allows "the legislature of any state [to] empower the executive thereof to make temporary appointments until the people fill the vacancies by election . . .," and in § 3-10-3, the Legislature authorized the Governor to proclaim an election to fill the vacancy where, as here, the vacancy exceeds two years and six months in duration.
Although the reference in West Virginia Code § 3-10-3 to the "primary election next following such timely filing . . . ," creates an additional ambiguity, well established rules of statutory construction and judicial rules of decision-making support the proposition that a special primary election should be held in this situation. Where a statute is ambiguous, statutory rules of construction dictate that it be construed to give force and effect to the Legislature's intent. Burgess v. Moore, ___ W. Va. ___, 685 S.E.2d 685 (2009); Smith v. State Workers' Compensation Commission, 159 W. Va. 108, 219 S.E.2d 361 (1975). Additionally, where a statute is susceptible of more than one construction, one which renders the statute constitutional, and the other which renders it unconstitutional, the statute will be given the construction which sustains constitutionality. Syl. pt. 2, State ex rel. Frazier v. Meadows, 193 W. Va. 20, 454 S.E.2d 65 (1994), citing State ex rel. Slatton v. Boles, 147 W. Va. 674, 130 S.E.2d 192 (1963); and Board of Education v. Board of Public Works, 144 W. Va. 593, 109 S.E.2d 522 (1959). Finally, "[w]here a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such an absurdity, will be made." Coal and Coke Ry v. Conley, 67 W. Va. 129, 67 S.E.2d 613 (1910); United Bank v. Stone Gate Home, 220 W. Va. 375, 647 S.E.2d 811 (2007).
In this case, the Secretary of State's reading of West Virginia Code § 3-10-3 creates a situation which, while perhaps not absurd, would certainly be awkward and unintended: two elections in November 2012, one to fill a Senate vacancy of (by then) a few weeks, and another for a full term of office.
Finally, it is the opinion of the Attorney General that the power of the Governor to proclaim a special election carries with it the power to set the date of the election, filing dates for candidates, and all other election procedures; without such ancillary power, the authority to proclaim an election would be meaningless. In this regard, West Virginia Code § 3-1-2 provides that "[u]nless restricted by the context, the provisions of this chapter shall apply to every general, primary and special election in which candidates are nominated or elected . . . ." (Emphasis added.)
The Attorney General stands ready to work with the Executive and Legislative Branches to ensure that in light of the shortened time frames for a special election, proper consideration is given to minority party participation, elimination of barriers to absentee voting (Uniformed and Overseas Citizens Absentee Voting Act), and any other procedural issues which may arise.
IV. OPINION OF THE ATTORNEY GENERAL
Is the Governor of West Virginia legally authorized to proclaim a special election to fill the remainder of the unexpired term in the United States Senate created by the untimely passing of the great United States Senator Robert C. Byrd?
ANSWER: Yes. West Virginia Code § 3-10-3, construed in aid of the United States Constitution, Amendment XVII, authorizes the Governor to proclaim a special election to fill the remainder of Senator Byrd's unexpired term, since said unexpired term exceeded two years and six months at the time the vacancy occurred.
If the answer to question number one is "yes," when may such special election, as proclaimed by the Governor, lawfully occur?
ANSWER: The date of the special election may be set by the Governor in the proclamation. Since a general election is already scheduled for Tuesday, November 2, 2010, it is suggested that a special primary election be held at a time which maximizes the opportunity for all potential candidates to prepare for both the special election and the general election, and for all voters, including those in the Armed Services, to participate and have their voices heard.
If the answer to question number two is that a special election may occur prior to the election cycle set forth in law for the year 2012, what law governs the conduct of such special election, especially with regard to election procedures, nominations, filing deadlines, campaign finance, etc.?
ANSWER: The conduct of the special election may be set by the Governor, in the proclamation, to conform as closely as possible to existing election law, West Virginia Code § 3-1-1 et seq., with necessary modifications. The power to proclaim a special election, which is specifically contained in West Virginia Code § 3-10-3, necessarily carries the ancillary power to set the parameters of said special election; otherwise, the power to proclaim the election would be meaningless.
Please feel free to contact me if we can provide additional guidance in this matter, or if you have any questions.
Very truly yours,
Darrell V. McGraw, Jr.
Attorney General