West Virginia Governor

What a difference a few days make — or don't — in filling the rest of the late Sen. Robert C. Byrd's ninth term.

West Virginia Gov. Joe Manchin, a Democrat, has the power to appoint a successor to Byrd – but, because Byrd died at the beginning of this week and not the end, it’s not entirely clear whether that person will be a short-timer in the Senate or serve more than two years.


Under West Virginia election law, Manchin surely would have been able to appoint someone to fill the entire remainder of Byrd’s term had Byrd died after July 3 – or with less than 30 months left to go on a term that expires Jan. 3, 2013. But with more than 30 months left of an “unexpired term,” the law stipulates that he tap an interim successor until an election can be held.

That law, however, isn’t clear on two points within the construct: First, the law is silent on when, exactly, a vacancy occurs – at the time of death, when the Senate informs the state or when the governor declares it? – and the law for calling a special election is written in a way that suggests that it couldn't be held until the date of the next regularly scheduled election in 2012.

Here’s the relevant wording from the West Virginia code: “If the unexpired term of any office is for a longer period than [30 months], 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.”

West Virginia held this year's primary election in May and does not have another regularly scheduled election until 2012.

Neither Manchin’s office, nor a spokesman for Senate Majority Leader Harry Reid (D-Nev.) could be immediately reached for comment or clarification on how Byrd’s office will be filled.

But even if there’s a special election, Manchin can appoint an interim placeholder until voters have their say.

Manchin, a popular two-term governor, is considered highly unlikely to appoint himself to the remainder of Byrd’s term because many expect him to seek a full Senate term in 2012. Voters have a long history of ousting senators who used their power as governor to appoint themselves to the seat.

Manchin, who announced the formation of a federal political action committee last month, is more likely to appoint a caretaker for the seat – either a well-known and non-controversial West Virginian of significant stature or a close ally who can help Manchin position himself for a run. West Virginia Governors 1863-1980

Whenever the next election is held, Rep. Shelley Moore Capito, the daughter of former Gov. Arch Moore, would be an immediate front-runner for the Republican nomination if she chooses to run.