By Felicia Sonmez
Washington Post Staff Writer
Tuesday, December 28, 2010; 5:40 PM
Six months after the death of Robert C. Byrd set off a battle over the timing of a special election to succeed the late Democratic senator, West Virginia officials are again at odds over the scheduling of another special election - the race for governor.
State Senate President Earl Ray Tomblin (D), who became acting governor last month following then-Gov. Joe Manchin III's (D) victory in the special election to succeed Byrd, contends that the special election to fill the remainder of Manchin's term should coincide with the date of the 2012 general election. The unexpired term ends Dec. 31, 2012.
But State House Speaker Richard Thompson (D), who has signaled that he'd like to jump into the gubernatorial race, argues that a special election should be held in 2011.
A 2012 special election would be a boost for Tomblin, allowing him to consolidate support over the next two years. Meanwhile, a 2011 special vote would benefit Thompson and others, allowing them to gear up for their challenges before Tomblin has had time to firmly ground himself as an incumbent.
Thompson on Monday was joined by state auditor Glen B. Gainer III, who filed a brief calling for a special election to be held next year.
Legislative lawyers say that state law doesn't allow for an election before November 2012. But earlier this month, the West Virginia Citizen Action Group and South Charleston attorney Thornton Cooper filed lawsuits asking the state Supreme Court to allow voters to go to the polls earlier than that. They argue that the state constitution requires a special election when a vacancy occurs less than three years into a four-year term. Manchin left office with more than two years remaining in his unexpired term.
The West Virginia Education Association and the state AFL-CIO are among those pressing for a special election to be held as soon as possible.
Proponents of an earlier special election also argue that by serving concurrently as acting governor and as state Senate president, Tomblin is violating the state constitution, which states that no person shall "exercise the powers of more than one [branch of government] at the same time." Tomblin has said that he's putting aside his Senate duties while he serves as acting governor.
Monday was the deadline for all parties to file briefs in response to the lawsuit. In addition to Thompson, Tomblin and Gainer, state Secretary of State Natalie Tennant (D) also submitted a brief. She said her office does not have the authority to call a special election and requested that if one is held in 2011, her office would like at least 90 days to prepare.
The next step is up to the state Supreme Court, which could decide to issue an opinion on the case, hear it on the merits or not hear it at all.
If the court decides not to hear the case, then West Virginia is headed toward a 2012 special election. Those wanting an earlier special election could appeal the case, but they'd have to take it to the Supreme Court.
The high court could ultimately order the state legislature - or Tomblin himself - to schedule the special election. On Monday, Tomblin said he stands by his commitment to hold an earlier special election if it's decided that one is necessary.
A 2011 special election would mean that West Virginia would join Kentucky, Louisiana and Mississippi in holding gubernatorial races next year.