The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Rule Of Law Upheld In West Virginia

Posted on | June 28, 2010 | 12 Comments

by Smitty (via Marc Ambinder)

A legal precedent has been located that precludes a November vote for the final third of Senator Byrd’s term. From West Virginia’s Secretary of State, Natalie Tennant:

Part of this same [relevant] section of code, requires the candidate to have filed during the filing period. That filing period has already passed. There was a legal case in 1994 decided by the West Virginia Supreme Court of Appeals that up held that position of requiring candidates to file during the filing period.

Apparently, people who wanted to run would have had to apprehend Senator Byrd’s impending demise and filed for a possible election. Howe tasteless would that have been?
The good news in all this is that, since the ruling falls in favor of the Democratic Party, we’re spared endless breast-beating about the crushing of voter expression, Republican Party thugger in general, and Rascal Rove vitriol in particular.
One hopes that this decision reflects the will of West Virginia citizens. Failing that, one hopes they remember well this little turn of events.

Comments

  • http://norunnyeggs.com steveegg

    Nothing like allowing the replacement to actually serve close to 3 years, as the filing deadline was January 30.

  • http://norunnyeggs.com steveegg

    Nothing like allowing the replacement to actually serve close to 3 years, as the filing deadline was January 30.

  • Pingback: No Runny Eggs » Blog Archive » “Interesting” how far the law can be stretched()

  • Joe

    Apparently the Governor wants Jesse’s old seat. Good jobs are hard to come by in West Virginia and having Jesse’s pork powers is the best job of all.

    I hope someone sues.

  • Joe

    Apparently the Governor wants Jesse’s old seat. Good jobs are hard to come by in West Virginia and having Jesse’s pork powers is the best job of all.

    I hope someone sues.

  • jefferson101

    You allow Democrats to interpret our Laws, and expect to get any kind of interpretation that doesn’t favor the Democrats?

    I am totally shocked to see a Democrat using the Law to serve his own whims. Is there no honor among (strikeout)Thieves(/strikeout) Politicians?

    Most Republicans would do the same thing, but they are afraid of the Media Swarm, which is not going to be incurred when a Democrat does it.

  • jefferson101

    You allow Democrats to interpret our Laws, and expect to get any kind of interpretation that doesn’t favor the Democrats?

    I am totally shocked to see a Democrat using the Law to serve his own whims. Is there no honor among (strikeout)Thieves(/strikeout) Politicians?

    Most Republicans would do the same thing, but they are afraid of the Media Swarm, which is not going to be incurred when a Democrat does it.

  • Estragon

    I’d be very interested to learn the details of the case the SoS cited. Did the SCOWV actually say the “filing period” clause applied to a situation like this, where the vacancy is created AFTER the normal filing periods have passed, or is just turning down an appeal by a candidate who missed the deadline by a few minutes? Big difference there.

    IF a special election were called, aren’t there ALWAYS “special” new filing periods?

    It seems to me the SoS is using this “precedent” to resolve apparent conflicts in the law, so the details of that case become important. If the legislature had intended this, they could have simply added “… unless the regular filing period for the office, had it been up for election, have passed” – which makes no sense.

    OF COURSE there are no filing deadlines missed for this seat – the filing periods are in two years when it is normally up. This interpretation may be too clever by half.

  • Estragon

    I’d be very interested to learn the details of the case the SoS cited. Did the SCOWV actually say the “filing period” clause applied to a situation like this, where the vacancy is created AFTER the normal filing periods have passed, or is just turning down an appeal by a candidate who missed the deadline by a few minutes? Big difference there.

    IF a special election were called, aren’t there ALWAYS “special” new filing periods?

    It seems to me the SoS is using this “precedent” to resolve apparent conflicts in the law, so the details of that case become important. If the legislature had intended this, they could have simply added “… unless the regular filing period for the office, had it been up for election, have passed” – which makes no sense.

    OF COURSE there are no filing deadlines missed for this seat – the filing periods are in two years when it is normally up. This interpretation may be too clever by half.

  • http://norunnyeggs.com steveegg

    Yes, Estragon. Indeed, it applies when the vacancy happens before the primary but after the filing period, which would have allowed Byrd’s appointed replacement to serve for 2 years, 10 months, and change before an election had he died on January 30 (the last day to file), and potentially on January 11 (the first day to file).

    Quoting from the 1994 case:

    In this case, the vacancy did not occur until April 20, 1994, which was before the May 1994 primary, but after the time for filing a certificate of candidacy under W. Va. Code, 3-5-7 (1991). This section requires that a certificate of candidacy must be filed no “later than the first Saturday of February next preceding the primary election day[.]” It is clear that under W. Va. Code, 3-10- 3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has “timely filed a certificate of candidacy, [and] has been nominated at the primary election next following such timely filing[.]” Thus, under these requirements, there was no opportunity for a successor candidate in this case to timely file a certificate of candidacy for the May 1994 primary election.

  • http://norunnyeggs.com steveegg

    Yes, Estragon. Indeed, it applies when the vacancy happens before the primary but after the filing period, which would have allowed Byrd’s appointed replacement to serve for 2 years, 10 months, and change before an election had he died on January 30 (the last day to file), and potentially on January 11 (the first day to file).

    Quoting from the 1994 case:

    In this case, the vacancy did not occur until April 20, 1994, which was before the May 1994 primary, but after the time for filing a certificate of candidacy under W. Va. Code, 3-5-7 (1991). This section requires that a certificate of candidacy must be filed no “later than the first Saturday of February next preceding the primary election day[.]” It is clear that under W. Va. Code, 3-10- 3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has “timely filed a certificate of candidacy, [and] has been nominated at the primary election next following such timely filing[.]” Thus, under these requirements, there was no opportunity for a successor candidate in this case to timely file a certificate of candidacy for the May 1994 primary election.

  • Pingback: Signs Point to Manchin Appointing Himself to Replace Byrd. « Red Dog Report()