44: Confusion over how to fill Sen. Byrd's seat

By Paul Kane
Washington Post Staff Writer
Monday, June 28, 2010; 9:08 AM

With the death early Monday of Sen. Robert C. Byrd (D), West Virginia Gov. Joe Manchin III (D) must select an interim replacement for a legend who many in the state and elsewhere consider one of a kind.

A quirk in West Virginia's laws appears to state that the replacement will likely hold the seat for the remainder of the late senator's record ninth term, through 2012; therefore, Byrd's death would not impact the partisan makeup of the chamber, nor would it directly impact the pending 2010 elections. However, there is some ambiguity in the law that has left some election experts questioning the what should happen with the seat.

State law mandates that, if a Senate vacancy occurs more than 2 1/2 years before the term is up, a special election be held to fill the seat. There were exactly two years, six months and five days left in Byrd's term when he died.

However, the law states that the special election would only occur after a candidate "has been nominated at the primary election next following such timely filing and has thereafter been elected."

Because West Virginia held its 2010 primary almost two months ago, many election law experts read that provision to mean that the "next" primary would not be until spring 2012, before the general election in November, 2012. Some legal experts, speaking privately out of deference to Byrd's family, wondered whether this wording could open a legal challenge and force a special election this November, similar to those happening in Delaware and New York to fill the remainder of Senate terms vacated by Vice President Biden and Secretary of State Hillary Rodham Clinton.

The issue of Senate succession, however, has simply not been an issue in recent West Virginia history--Byrd has held his seat since January 1959, and Sen. John D. Rockefeller (D-W. Va.) has held his seat since 1984. Had Byrd lived another week, the issue would have clearly been moot, since it would have been less than 2 1/2 years until the end of his term.

Manchin did not immediately issue a statement about his selection process after Byrd's death was announced early Monday. Late Sunday, after aides to Byrd said he remained hospitalized and "seriously ill," Manchin said he was praying for Byrd's recovery: "West Virginians need his leadership in Washington. Sen. Byrd is a true champion for our state," Manchin said in a statement.

Byrd's successor will be the sixth senator appointed, rather than elected, to office since the start of the 111th Congress in January, 2009.

It's unclear which party benefits most from the potential timing of the next Senate election in West Virginia. Many Democrats will look to Manchin to run for the seat, but party strategists do not want him to appoint himself as the interim senator because of the inherent political awkwardness in such a move.

Assuming the interim appointment lasts through 2012, Democrats may not want Manchin to appoint a caretaker senator, as those appointments have created some political headaches for the party. In Delaware, for example, Sen. Ted Kaufman (D-Del.) was appointed to fill Biden's seat but will not run to retain that seat in the next election. In Massachusetts, Paul Kirk was appointed to succeed Edward M. Kennedy (D) but did not seek the seat in the special election that was won by Republican Scott Brown.

In 2006, Republicans tried to recruit Rep. Shelley Moore Capito (R), the daughter of former governor Arch Moore, to challenge Byrd. She passed on the race but has been considered a potential statewide candidate ever since.

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