Appointment will fill Byrd's seat until Nov. 2012 special election

The person West Virginia Gov. Joe Manchin (D) appoints to fill the late Sen. Robert Byrd’s seat will serve until a special election is held in November 2012.

On Nov. 6, 2012, West Virginians will vote in two elections: one to fill out the remainder of Byrd’s (D-W.Va.) term and one to elect someone to fill Byrd’s seat, which expires in January 2013.

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The winner of the special election will hold office for five weeks — until Jan. 3, 2013. The winner of the general election will take office for the 113th Congress.

A candidate can run in both elections, according to the West Virginia secretary of state’s office.

Monday was marked by confusion regarding West Virginia’s election law, leading West Virginia Secretary of State Natalie Tennant (D) to hold an afternoon press conference to announce what would happen to Byrd’s seat.

She said the position for the unexpired term and full term will be on the ballot at the same time but as separate races.

“In fact, it will be two separate elections,” she explained, “with the unexpired race being a special election because it would otherwise not have been on the ballot.”

Byrd died early Monday at the age of 92.

West Virginia law states that a special election should be held if more than two and a half years are left in the term. Byrd died with two years, six months and five days left in his term.

But confusion arose from the code’s wording. As to the matter of succession, it read that if the unexpired term of office is for a longer period than two and a half years, “the appointment is 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.”

West Virginia already held its 2010 primary, on May 11. State officials cited that reason for setting the special election in 2012.

“That [special] election will not be the 2010 general election,” said Tennant. “Part of this same section of code requires the candidate to have filed during the filing period. That filing period has already passed.”

Tennant cited a 1994 state Supreme Court case that she said upheld the requirement that candidates file during the filing period. In Robb v. Caperton, a Republican county chairman attempted to force then-Gov. Gaston Caperton to call a November special election to fill a vacant county circuit court seat. The court ruled that the governor’s appointed candidate would occupy the seat until the 1996 general election.

“Had Sen. Byrd’s term not run out in 2012, there would not have been this unique situation. It would have just been for the unexpired term,” said Tennant.

The executive director of West Virginia’s Republican Party said Monday afternoon that the party is examining its legal options.

“I don’t think anything unexpected happened here,” Troy Berman told The Hill. “But we’re examining all of our legal options and we’ll make a decision on how to proceed in the next few days.”

Now it falls on Manchin to settle on a timetable for announcing a replacement — a decision closely tied to his political future.

Manchin has long had his eye on national office and has positioned himself to succeed Byrd in the Senate. The governor has raised his national profile in recent months with the forming of his Country Roads political action committee. Manchin, who is term-limited out of the governor’s office in 2012, will ascend to the chair of the National Governors Association next month.

Manchin is a force in West Virginia politics. His approval rating, hovering near 70 percent, makes him one of the most popular governors in the nation. He won reelection in 2008 with 75 percent of the vote.

He declined to put a timetable on his decision for an appointment, but he did tell The Associated Press on Monday that he has no intention of appointing himself to the seat.

The prospect of an election in 2012 could turn out to be the best-case political scenario for Manchin. Were the special election to be held in November, he would have to mount a campaign quickly and start raising federal dollars.

“This puts [Manchin] in a better position because he doesn’t have to answer the question of whether he will resign as governor to run for Senate,” said West Virginia University political scientist Neil Berch.

Manchin had pledged to serve out his gubernatorial term.

The most likely appointment scenario is that Manchin selects a caretaker candidate with no interest in running for the seat two years from now: someone in the mold of Sen. Ted Kaufman (D-Del.), who replaced Joe Biden, or Sen. Paul Kirk (D-Mass.), who succeeded the late Sen. Edward Kennedy.

Several names emerged Monday as potential interim replacements. Former state Democratic Party Chairman Nick Casey and current state Democratic Party Chairman Larry Puccio were at the top of the list. But insiders said they don’t expect Casey to pass over a federal judgeship to serve out the remainder of Byrd’s Senate term.

That leaves Puccio, who is Manchin’s former chief of staff, as the most likely possibility, although Democrats said other names may emerge Tuesday.

Two former governors were also floated in various reports Monday — Caperton and Bob Wise. But one state Democrat said both of those appointment scenarios are unlikely.

Wise served just a single term as governor, from 2001 to 2005. He decided not to run for reelection in 2004 after admitting to an extramarital affair. And Caperton left office unpopular with voters and no longer resides in the state.

For Manchin, even a caretaker appointment isn’t without risk. Whomever Manchin appoints will also have to cast some tough votes in the Senate from now until 2012.

The Democrat in Byrd’s seat could be pressured by Senate Democrats to cast some votes that might be unpopular in West Virginia, particularly on cap-and-trade. Manchin is a staunch opponent of the Obama administration’s proposal.

“If you don’t have someone in there voting the right way, you could make the argument it actually weakens [Manchin’s] position for 2012,” said one Democratic strategist who declined to comment on the record out of deference to Byrd’s family.

On the Republican side, Rep. Shelley Moore Capito (R-W.Va.) is considered the strongest candidate for the seat.

But Democrats are not convinced that Capito is sold on running for Senate. A campaign for governor in 2012 might be the easier race.

Capito comes from one of the state’s best-known Republican families. Her father, Arch Moore, was a long-serving congressman who went on to serve two stints as governor.

She was mentioned as a possible challenger to Byrd in 2006 but ran for reelection to her House seat.

She steered clear of making any move toward a Senate campaign in her statements Monday.

“Sen. Byrd’s mastery of the Senate will be remembered for the ages, but those who knew him best realize his legacy will be one of love for the West Virginians he served for nearly 57 years,” Capito said in a statement released by her office Monday. “Whether he is remembered as the young man who played the fiddle or the elder statesman that carried a copy of the Constitution in the pocket next to his heart, Robert Byrd touched the lives of countless West Virginians. His service to West Virginia and dedication to our nation’s democracy set an example to which generations can aspire.”

There are currently five appointed senators. Manchin’s appointee would add a sixth, which is high for the upper chamber but not close to the record. In the 1945-46 session of Congress, there were 13 appointed senators, according to the Senate Historical Office.

— Sean J. Miller contributed to this article.