Not to be too crassly political, but his death this week does complicate this year's election picture. Nate Silver reports on West Virginia's vacancy law and it, apparently, makes a big difference that he died this week instead of next week.
Byrd's current term expires on January 3, 2013. Under West Virginia state law on handling Senate vacancies, "if the vacancy occurs less than two years and six months before the end of the term, the Governor appoints someone to fill the unexpired term and there is no election". Otherwise, Manchin would appoint an interim replacement, and an special election would be held in November to determine who held the seat in 2011 and 2012.Given that the state stresses filling the vacancy "as soon as possible after a vacancy occurs" it would be quite wormy for the Democratic governor to try to get around the law by some shenanigans about declaring the seat vacant.
In other words, we are within a week of the threshold established by West Virginia law. If a vacancy were to be declared on July 3rd or later, there would not be an election to replace Byrd until 2012. If it were to occur earlier, there could potentially be an election later this year, although there might be some ambiguities arising from precisely when and how the vacancy were declared.
So We will have to figure out how an open West Virginia Senate seat will figure into this year's election. We'll see if West Virginia voters, in this climate, will vote Democratic in the election. I hope the GOP has a decent candidate to put forward.
UPDATE: Jim Geraghty doesn't have much confidence that the Democratic governor won't wait a week to declare the Senate seat vacant so that he can appoint a replacement for the rest of the term instead of facing a vote this year. Who would put anything past the party that twisted state laws out of all proportion with the Robert Torricelli switcheroo?
Nate Silver and the Washington Post identify another quirk in the WV election law that may play into all of this.
However, the law states that the special election would only occur after a candidate "has been nominated at the primary election next following such timely filing and has thereafter been elected."By all means, let's have the lawyers settle this. Of course, the lawyers wouldn't enter into it at all if the governor acted in the spirit of the laws and called for an election this November. But are Democrats as interested in democracy and hearing from the people if they don't think they'll like what the people have to say?
Because West Virginia held its 2010 primary almost two months ago, many election law experts read that provision to mean that the "next" primary would not be until spring 2012, before the general election in November, 2012. Some legal experts, speaking privately out of deference to Byrd's family, wondered whether this wording could open a legal challenge and force a special election this November, similar to those happening in Delaware and New York to fill the remainder of Senate terms vacated by Vice President Biden and Secretary of State Hillary Rodham Clinton.