With the election of Gov. Joe Manchin to the United States Senate, State Senate President Earl Ray Tomblin becomes "acting governor." But for how long? Legal scholars and historians differ.
The state constitution says that the president of the senate shall "act as governor" until an election is called to fill the vacancy. The constitution says nothing about when that election shall be held or who is to schedule it.
A few years ago the legislature passed a statute saying the senate president/acting governor is to say when that election is to take place. This same statute declared that whoever was senate president was also "lieutenant governor." So, we know who is to schedule the election, but the timing's up to him.
Aha (some say), not so fast. Three legislative attorneys with a lot of experience in election law say we cannot have a special election until the general election of 2012. That's when a new governor would be elected anyway, since Manchin, had he not been elected to the U.S. Senate, would have finished his second consecutive term as governor and would therefore have been ineligible to run for the office.
Others say, however, that an election must be held quickly, since the idea of a senate president acting as governor while still a senator is a gross violation of the principle of separation of powers enshrined elsewhere in the state constitution. Clearly, these two provisions are in conflict with each other. I jokingly told President Tomblin a couple of months ago that if Manchin won the U.S. Senate seat he (Tomblin) would become West Virginia's "prime minister light," since he would be leading both the executive branch of government and half of the legislative branch.
The legislature could pass a statute specifying when the special election is to be held. We could take such action in the 2011 regular session (which begins Jan. 9) or in a special session either prior or subsequent to the regular session. Gov. Manchin (he may have taken his seat in the U.S. Senate by now) said he would not call a special session.
Politics is heavily involved in this debate, as both Senate President/Acting Governor Tomblin and House of Delegates Speaker Richard Thompson have said publicly they want to run for governor whenever the next election is held. Some fear that this situation will cause the upcoming regular session (and perhaps the 2012 one, as well) to be unproductive in dealing with our state's problems. I don't think that will be the case.
I was first elected to the House of Delegates in 1982. I served one two-year term before being defeated in 1984, and then got back into the House in 1992, where I have been since. When I first took office in January of 1983, Jay Rockefeller was beginning the third year of his second term as governor. He was prevented by the state constitution from running for re-election in 1984 and both Senate President Warren McGraw and House Speaker Clyde See were actively running to succeed him.
We had, in my view, two very productive years, due, I think, to both the president and the speaker believing they would both be helped against other contenders by the legislature being successful. Many other folks want to run for governor in 2012 or sooner, and I think both Thompson and Tomblin believe they would benefit from success by the legislature.
Meanwhile, I want to change the gubernatorial succession procedure permanently. I think West Virginia should have an elected lieutenant governor. This would require a constitutional amendment, which must get a two-thirds vote in each house of the legislature and then be ratified by a majority of the people of the state as a referendum. The referendum could be held at either the next general election (2012) or at a special election called for that purpose only. I think it's better to put the question before the voters at a general election, since the turnout would be much greater.
I'm confident the voters would approve such a plan, since by then they will be aware of the mess our present procedure makes. New Jersey had this procedure until it had to use it a few years ago. New Jersey junked the procedure shortly after that. I know of no other state that has or has ever had the procedure we have.