West Virginia's Top Lawyer Clears Special Election for Byrd's Seat

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 for a vote earlier than 2012, when Byrd would have faced re-election.

The iconic Democrat died last week after more than a half-century in the Senate. The 92-year-old 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.

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 now 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. Given the short time frame before Nov. 2, McGraw also offered aid to ensure the participation of minor parties and overseas military and other likely absentee voters.

Although he postponed his pick while he awaited McGraw's legal opinion, Manchin said he already has several potential appointees in mind to fill the seat until the election. While declining to provide names, the governor 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.

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.