by Clifford F. Thies

West Virginia’s law provides that the Governor fills vacancies in the U.S. Senate and certain other offices when there is no more than 2 ½ years in the unexpired term of the office. In cases where there is more than 2 ½ years, the Governor’s appointee shall serve only until a person who has timely filed for the primary is be elected in the subsequent election and takes office. As the filing deadline was, this year, on January 30th (the primary having already been conducted), this would seem to mean that the Governor fills vacancies in the U.S. Senate of up to 3 years. And, in particular, will fill the vacancies resulting from Senator Robert Byrd’s passing for the more then 2 ½ years remaining on the term of his office.

Or may not.

In West Virginia, the filing deadline for independent and third-party candidates is July 30th. Independent and third-party candidates are not nominated by primaries under West Virginia law. Instead, they are nominated by petition. Furthermore, the idea that only somebody nominated by one of the major parties recognized by the state of West Virginia can be elected to fill a vacancy is a violation of the federal constitution, in that it would create an additional qualification for office and the courts have clearly ruled that states may not do this. Therefore, it seems to me, it may be possible for independent and third-party candidates to timely file by July 30th to fill the vacancy created by the passing of Senator Byrd.

Were independent and third-party candidates to be allowed to file, it would seem to me that members of the major parties should also be allowed. An easy enough way to do this is to allow them, as well as the independent and third-party candidates to be nominated by petition. A better way might be for the major parties to nominate by convention in cases where vacancies open with more than 2 ½ years unexpired but after it is practical to file for the primary. However, devising such an involved scheme would be better left to the legislature of the state, than be declared by a court.

The state Attorney General should be petitioned by the Republican Party for a ruling, allowing them to nominate by convention by the July 30th or to allow its members to be nominated by petition by that deadline. In addition, an appeal of the AG’s decision be prepared, and, petitions be drawn up and circulated to nominate a candidate for the office.

Editor's Note - Cliff makes his home in Winchester, western Virginia, on the east slope of the Appalachians.

UPDATE: "Flipping Racial Minorities The Byrd," an Op Ed by Wes Messamore.