CHARLESTON, W.Va. — West Virginia's top lawyer cleared the way Thursday for Gov. Joe Manchin to put a special election for the late Robert C. Byrd's Senate seat on the November ballot.
Attorney General Darrell McGraw, responding to questions posed by Manchin a day earlier, concluded that the governor can declare a special election to fill what remains of Byrd's term. Manchin sought the legal opinion after joining a growing push to hold a vote earlier than 2012, when Byrd would have faced re-election.
Byrd, 92, died last week after more than a half-century in the Senate. He had just over 30 months left in his term.
Manchin has said he would prefer placing the seat on the Nov. 2 general election ballot. Citing that date, McGraw's opinion suggests that Manchin set a special primary election "at a time which maximizes the opportunity for all potential candidates" and voters.
Traveling to Boston for the annual summer meeting of the National Governors Association, where he is in line to become the group's next chairman, Manchin welcomed the opinion.
"In light of this opinion, I plan to speak with the state's legislative leadership immediately to determine how we will further proceed in order to reach a conclusion to this matter," the governor said in a statement.
Pending an election, the governor will appoint someone to fill the vacancy. Manchin has said he may run for Byrd's seat, but won't arrange to have himself appointed.
Secretary of State Natalie Tennant, West Virginia's chief elections officer, earlier ruled that Manchin's appointee to fill the vacancy could keep the seat until 2012. Tennant later said she personally favored an earlier election.
Tennant, Manchin and McGraw are all Democrats, but West Virginia voters overwhelmingly went for Republican John McCain in the 2008 presidential race. A special election would put another Democratic Senate seat in play this year as the party struggles to retain its majority. [See where McCain's campaign cash comes from.]
McGraw's ruling said Tennant's analysis relied too much on a 1994 state court ruling, which arose from a judicial appointment, and too little on the 17th Amendment. That change to the U.S. Constitution shifted the election of U.S. senators from state legislatures to voters.
"We begin and end with the fundamental proposition that 'no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live,'" the opinion said, quoting from a U.S. Supreme Court decision.
Manchin may call a special legislative session to settle details such as candidate filing and party nomination deadlines. McGraw's opinion found that the governor already has the power to set the parameters of a special election. "Otherwise, the power to proclaim the election would be meaningless," it said.
Tennant said Thursday that her office has begun drafting possible measures for a special session. She said the differing opinions about when to hold the election underscore the need to clarify state law.
Citing the attorney general's opinion, House Speaker Rick Thompson questioned the need for a special session. The Wayne County Democrat said the state should instead save taxpayer dollars and have the Legislature address state election law during is regular session next year.
Given the short time before Nov. 2, McGraw has offered to help ensure the participation of minor parties and overseas military and other likely absentee voters.
Although Manchin postponed his pick while he awaited McGraw's legal opinion, the governor said he already has several potential appointees in mind to fill the seat until the election. While declining to provide names, he said they have appeared in media reports on the topic.
Names mentioned in the press include former state Democratic Party chair Nick Casey; his successor, Larry Puccio; former Democratic governors Gaston Caperton and Bob Wise; Senate President Earl Ray Tomblin, D-Logan; and longtime Byrd aide Anne Barth.
Manchin, who has enjoyed solid approval ratings throughout his tenure as governor, won re-election in 2008 with nearly 70 percent of the vote and carried all 55 counties. Halfway through his second term, the state constitution bars Manchin from running again for governor in 2012.
"If you're looking for a Senate candidate, you look for someone with his profile: He's popular, he knows how to raise money, and he has the desire to do it," said Jennifer Duffy, senior editor of the Cook Political Report.
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.