Special Election Cleared to Fill Byrd's Seat

July 10, 2010 -- West Virginia voters may hold a special election to replace the late Sen. Robert Byrd this year after the state's top lawyer said Thursday that "the people's right to vote" trumps an unclear election law.

Members of both parties, including West Virginia's Democratic Gov. Joe Manchin, called for a special election to fill the vacancy this year, but an ambiguous phrase in state law suggested voters might have to wait until 2012, when Byrd's term ends.

Byrd, the longest-serving member of Congress, died June 28, leaving Senate Democrats with one less vote at a critical time. Lawmakers hope to advance several bills, including new regulations for Wall Street, before Congress takes a month-long recess in August. Democrats now have a 58-41 voting edge.

In his opinion, West Virginia Attorney General Darrell McGraw wrote that because the state law is unclear, officials must interpret it with the U.S. Constitution in mind. In other words, the interpretation must "embody the principle of popular sovereignty ... the people's right to vote."

The vacancy leaves Democrats with another seat to defend in a year when election observers such as the non-partisan Cook Political Report predict Republicans will make significant gains. West Virginia voters haven't elected a Republican to the Senate since 1956 but they overwhelmingly backed Republican John McCain in the 2008 presidential race.

Richard Hasen, a professor at Loyola Law School in Los Angeles, said the opinion would likely appeal to members of both political parties. "Who's going to complain about this?" he said. "The Democrats wanted the early election, and the Republicans were threatening to sue over it."

Manchin, who must also name an interim replacement, did not set a timeline for the special election, but he suggested it could take place during the November midterms. In a statement, Manchin said he will speak with state lawmakers "immediately to determine how we will further proceed in order to reach a conclusion to this matter."

Manchin is term limited and cannot run again for governor in 2012. He has said he would "highly consider" running for Byrd's seat, but he has not announced his candidacy. Manchin has enjoyed solid approval ratings throughout his tenure as governor and won re-election in 2008 with nearly 70% of the vote.

He has vowed not to appoint himself to the seat and has declined to say whom he is considering.

Potential Republican special election candidates include Rep. Shelley Moore Capito. Already running for a sixth U.S. House term, Capito would not rule out seeking Byrd's seat when she joined calls this week for a vote before 2012.