Governor Joe Manchin of West Virginia has just announced that he has received the advisory opinion of Attorney General Darrell McGraw. In support of his advisory opinion, AG McGraw uses United States Constitution Amendment XVII, which states:
“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”
U.S. Const. amend. XVII. According to AG McGraw, a Senatorial appointment has not been advocated for nearly a century. In a rather interesting comparative analysis of West Virginia State law with West Virginia Secretary of State Natalie Tennant’s opinion, AG McGraw states that disallowing the Governor the right to call a special election of a Senator would eviscerate the language set out in West Virginia’s statute that provides, in pertinent part:
“Proclamation of any election to fill an unexpired term is made by the governor of the state . . . .”
W. Va. Code § 3-10-3. Therefore, the Governor may call a special election; however, making an interim Senate appointment falls outside the ambit of what Governor Manchin may do at this time. Once again, referring to U.S. Constitution Amendment XVII for support, AG McGraw maintains:
“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.”
U.S. Const. amend. XVII. Therefore, the West Virginia legislature must authorize Governor Manchin to make an interim Senate appointment. In conclusion, AG McGraw states that the authority of the Governor to call a special election includes the right to state the date of the election, “filing dates for candidates, and all other election procedures.” According to AG McGraw a special election can take place on November 2, 2010.
Now, the unemployed and their families must wait for the West Virginia legislature to authorize Governor Manchin to make an interim Senate appointment. Once that occurs, the interim Senator will appear in the Senate chamber to cast his/her vote on H.R. 4213. Hopefully, something will happen soon. Governor Manchin has made immediate plans to speak with the legislative leadership to determine how he should proceed. Today, we are one step closer to seeing H.R. 4213 passed in the Senate. All quoted and paraphrased statements were obtained from the two links provided in this article. As this legislative process unfolds, you can find the recent legislative changes here.
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