From Cillizza at the Post:
West Virginia law states that if there is a Senate vacancy more than two and a half years before the incumbent's term ends, a special election would be called for this November. That two and a half year mark is July 3 -- four days from now.
But, as the Post's Paul Kane notes, the language of the law is unclear as it sets up a schedule that would begin the special election process after the "primary next", meaning, according to Democrats, in the spring of 2012. Such a schedule would place the special election in November 2012 when Byrd's 9th term would have ended anyway.
The decision of how to read the law will almost certainly come down to Gov. Joe Manchin, a Democrat and the person seen as the most likely long term successor to Byrd in the Senate.
And, either way, Manchin will be required to appoint someone to serve out Byrd's term -- whether it is determined that the term ends this fall or in the fall of 2012. One name being mentioned for that caretaker appointment is state Democratic Party Chairman Nick Casey.
More from Hotline OnCall:
State law says Manchin's appointment will be valid "until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term."
The WV primary took place May 11, making it unlikely that a special election will take place this year. And odd-year elections, used in many states to pick local officials, are a rarity in WV. In recent years, voters went to the polls only in '05, when they voted on a constitutional amendment. No elections were held in '07, '03 or '01.
Because the primary has already occured, the next opportunity to "timely file" will be Jan. '12 -- when Byrd's seat would have come open anyway. A primary would follow in May, with a special election to be held in concurrence with a general election later that year.
There is settled case law on the point. In '94, Kanawha Co. Circuit Court Judge John Hey resigned in April. A local GOP party chairman sued then-Gov. Gaston Caperton (D) to try and compel a special election for the following Nov. The state Supreme Court, in Robb v. Caperton, ruled against the local party chairman and said Caperton's appointee would serve until the '96 election, when the office would have come up for election anyway.
