Response from Acting Gov. Tomblin
CHARLESTON, W.Va. (WSAZ) -- Acting Gov. Earl Ray Tomblin released the following comment regarding the House Judiciary Committee vote:
"I want to commend the members of the House of Delegates for the action they have taken to ensure that our citizens have the ability to select their next nominee for governor. It was the right thing to do. We need a primary. After the House passes the bill, I certainly hope the Senate and the House work together quickly to choose a primary date and a new election date, so that our citizens can exercise their democratic right and vote for their governor. What matters most is providing the people with the opportunity to go to the polls and vote."
UPDATE 8/20/11 @ 3:19 p.m.
CHARLESTON, W.Va. (AP) - West Virginia county clerks can now start sending out requested absentee ballots for the 2011 special gubernatorial general election on Oct. 4.
State law requires the ballots be sent out 46 days before the election to ensure deployed military and overseas citizens the opportunity to exercise their right to vote.
Secretary of State Natalie Tennant also said Friday that a new feature on her office's website allows voters who request an absentee ballot to track the status of their ballot by letting them know when it was sent and when it was received.
Officials say the deadline to register to vote in the special election is Sept. 13. Early voting begins on Sept. 21 and runs through Oct. 1.
On Tuesday, the House and the Senate each passed bills establishing a special primary election and a special general election to elect a person to serve out former Gov. Joe Manchin's term.
Both houses quickly pushed the bills through, but the bills call for different dates for the election. Both bills were passed unanimously in their respective chambers.
The House is calling for a May 14 primary and a Sept. 13 general election. The Senate passed Acting Gov. Earl Ray Tomblin's proclamation calling for a June 20 primary and a general election on Oct. 3.
"Absent a good reason, other than they want to pick a date different, the governor has been ordered to issue a proclamation," Acting Senate President Jeff Kessler says. "I think it just adds more confusion. I think there's no reason to fight over that issue, again as I mentioned over three measly weeks."
But the House argues, the sooner an election is held, the better. House Speaker Rick Thompson says the Supreme Court called for an election as quickly as practicable -- not as late as possible.
"I would hope that they would (pass the bill) and get this issue behind us," Thompson says. "I have not heard a valid reason not to have the primary on May 14th."
The two houses have to come to an agreement before an election can be established. Differing bills are usually hashed out using joint rules. A set of rules passed the Senate on Tuesday but haven't been taken up yet in the House. The rules are ordinarily passed in the first days of the session.
"Without the joint rules, we are left with passing messages back and forth," Sen. Evan Jenkins says. He also adds that it's often hard to overcome differences by passing amendments back and forth between the chambers.
If lawmakers do decide to go with the house's version, Tomblin would then have to issue another proclamation. Kessler says that is not necessary since he's already issued a proclamation, and that's a step the Senate is trying to avoid.
Tomblin says he'll support whichever dates are decided upon.
But, now the debate is over when that will happen.
House leaders announced Monday they’re supporting a bill which cleared the House Judiciary Committee. It would set a primary on May 14 and a general election on Sept. 13.
This differs from a Senate version of the bill, which has been backed by Acting Gov. Earl Ray Tomblin (D), that calls for a June 20 primary and general election Oct. 4.
"We believe the October 4th date and a June primary is as long as possible. It's clearly not the intent of the Supreme Court's decision," House Speaker Rick Thompson (D) says.
The full House could vote on the bill as soon as Tuesday.
Through this bill, House leaders are backing a primary instead of an election held by party convention, which is what existing law calls suggest.
"Between a primary and a convention, it's certainly worth the cost to allow people to have full participation," says House Minority Leader Tim Armstead (D-Kanawha).
Secretary of State Natalie Tennant (D) says a primary could cost taxpayers up to $4 million.
But, political parties would pay for their own conventions.
Del. Barbara Evans Fleischauer (D-Monongalia) says, "I'm still concerned about the cost. But, I finally [decided to support a primary] after thinking about it more and hearing the general surge of people [saying], 'We want to vote.' "
Del. Tim Miley (D-Harrison) says he supports the primary but still has a concern too.
"I always hate changing the law in the middle of a process because … it always creates skepticism as to the motives behind changing the law," says Miley, chair of the House Judiciary Committee.
During a Senate hearing last week, some lawmakers voiced concerns about moving the primary into May. Some were concerned the Legislature would take a long time to settle on a date and, as a result, leave little time for election organizers to prepare.
Others were concerned about impacting the school calendar, but the House’s preferred primary date is a Saturday.
"If they've got it set on a weekend, that doesn't off the cuff trouble me that much. My primary concern was to make sure that we don't keep kids out of school for an additional day when they've missed so many days of school," says Sen. Corey Palumbo (D-Kanawha).
The bill also addresses rules in case this situation happens again. It includes a time line that requires an acting governor to call a special election if a vacancy in the office occurs in the first three years of the term.
The House and Senate each expect to vote Tuesday on differing versions of a proposal from acting Gov. Earl Ray Tomblin.
The Senate Finance Committee on Monday endorsed a timetable proposed by acting Gov. Earl Ray Tomblin. It would replace party nominating conventions with a June 20 primary. He earlier proclaimed an Oct. 4 general election for governor.
The House Judiciary Committee amended its version to set a May 14 primary and Sept. 13 general election.
The Senate could vote on its version Tuesday. The House bill advances to that chamber's Finance Committee.
As Senate president, Tomblin has been acting as governor since now-U.S. Sen. Joe Manchin resigned Nov. 15. The state Supreme Court says an elected governor must take office within a year of that date.
The Senate Judiciary Committee approved a bill that would set a June 20 primary date ahead of a special election scheduled for October 4. Current law calls for parties to hold conventions to choose their nominees for governor.
"Those that want to run need to have the right to put their name on the ballot. And, everybody needs to have the right to vote then," said Sen. Karen Facemyer (R-Jackson).
During a meeting Thursday, some senators even called for a primary as early as May, but most didn't like that because it would mean another day off school for kids.
"Let's face it, student achievement occurs when students are in the classroom with their teachers. And, we want to encourage that as much as possible," said Sen. John Unger (D-Berkeley).
The committee unanimously approved the measure, sending it to the Senate Finance Committee, but it may meet resistance in the House of Delegates, where several people have been critical of spending taxpayer money to hold a primary. According to Secretary of State Natalie Tennant, the parties would be responsible for the costs of conventions.
"I think the convention process would be just as efficient and more acceptable to the majority of the people in light of the cost.," said Del. David Perry (D-Fayette).
That cost to taxpayers, according to Tennant, is $3 million to $4 million.
"I think it'd be too repetitious that over the next two years we'd be going from election to election to election to election," said Perry.
But Sen. Corey Palumbo (D-Kanawha) says the money is worth spending since he feels a convention comes with downfalls.
"You exclude a vast majority of West Virginians from voting," said Palumbo.
Republican House members have been pushing strongly for a primary to be held. They’re trying to build a coalition with supportive Democrats who also favor a primary.
Legislation being introduced Tuesday on Tomblin's behalf would set a primary on West Virginia Day for voters to choose party nominees.
Tomblin proclaimed a special election last week as ordered by the state Supreme Court. The justices ruled unanimously that Tomblin could act as governor for no more than one year. An elected governor must then take office.
As Senate president, Tomblin began acting as governor under the state constitution on Nov. 15. That's when Joe Manchin resigned to join the U.S. Senate.
The court's ruling left intact the process for special elections, which allows only conventions.
Acting Gov. Earl Ray Tomblin tells WSAZ.com he plans to issue a proclamation Friday to call a special election in the fall. The Supreme Court ruled earlier this week that the state constitution requires Tomblin to set a special election for governor no later than Nov. 15.
This proclamation doesn't establish a primary, but Tomblin plans to deliver legislation Friday that would call for a special primary. He wants lawmakers to change the law allowing the state to have a primary.
Right now, the Constitution requires the convention to appoint candidates rather than having a primary, according to the Supreme Court ruling.
Also Friday, Tomblin called the Senate in to session. Tomblin says the high court's ruling regarding the election confirms that there is not a separation of power issue, there is an exception when the senate president is acting as governor.
Tomblin's stay in the Senate was brief and largely ceremonial. Acting Senate President Jeff Kessler took over for Tomblin following the prayer.
Several senators were opposed to the creation of the acting senate president position because they said it was unconstitutional, it was created under the argument that there needed to be a separation of power. They say Tomblin's appearance today proves that the rules should not have been changed to create the acting senate president position.
Kessler says the senate can establish whatever rules it chooses and says he's is merely leading the senate in Tomblin's absence, much like the senate president pro tempore would.
Some senators are calling for the senate to go back to the old rules. If that does not happen a lawsuit may be filed.
Tomblin tells WSAZ.com he will be on the Senate floor when his schedule allows.
Several senators called the creation of the acting senate president position unconstitutional and now they say a section of the election decision is backing them up.
A footnote of the decision says this:
"Our State Constitution does not provide for the office of acting governor. Rather, it simply provides that the senate president shall temporarily act as governor during a vacancy … The senate president does not cease being a constitutional officer when he or she acts as governor. The senate president remains the senate president."
"We think the decision yesterday gives us more ammunition to say that the rules adopted last week are unconstitutional," Sen. Evan Jenkins says.
They plan to meet with Senate leaders to address their concerns but say, if nothing happens, they're ready to file a lawsuit.
Those in favor of the rule change to create the acting senate president position say they did it to ensure a separation of powers, and that the Supreme Court decision is up for interpretation.
"A rose is a rose is a rose," Sen. John Unger says. "It's a presiding officer that presides over our body in the absence of our president."
Sen. Brooks McCabe said during a debate on the floor on Wednesday that -- with Earl Ray Tomblin taking on all of the responsibilities of governor -- it was imperative to choose a new leader for the Senate. Sen. Jeff Kessler was chosen as acting senate president.
The Supreme Court did tell lawmakers there has to be an election this year for governor. Tomblin says he plans to introduce legislation to lay out a plan to make that happen.
But the House didn't waste any time. Republicans introduced a bill on Wednesday, calling for a primary election on May 14 and a general election to choose a new governor on August 6. The bill has been referred to committees.
In an opinion released Tuesday by the West Virginia Supreme Court of Appeals, Acting Gov. Earl Ray Tomblin (D) is ordered to call for a special election by mid-November to fill the remaining portion of former Democratic Gov. Joe Manchin’s term.
Manchin left the office after winning a special election in November to fill the remainder of Democratic U.S. Sen. Robert C. Byrd’s term after his death last year.
In the ruling, the justices cite the state Constitution in saying that, since the vacancy of the governor’s seat occurred within the first three years of Manchin’s term, a special election must be held.
State lawmakers are already coming forward with what they'd like to see happen in the gubernatorial special election.
Depending on how this election goes, it could come with a price tag up to $8 million, according to Secretary of State Natalie Tennant.
When he became acting governor, Tomblin wanted it to stay that way until 2012.
"I relied on the legal scholars in this state. And what the Supreme Court did was say the election in 2012 was unconstitutional," Tomblin says. "And, I’ve said that from the beginning that I would abide by whatever the Supreme Court’s ruling is. Today they made that ruling."
According to Tuesday’s ruling, "The setting of the date of such new election must ensure that the vacancy in the office of the governor be properly filled within one year of the date when the vacancy occurred."
Tomblin took office Nov. 15, 2010.
At a news conference Tuesday night, he announced he’s meeting with House Speaker Rick Thompson (D), Acting Senate President Jeff Kessler (D) and Tennant to recommend a time line for holding the election.
Earlier in the day, Tennant pointed out there will need to be enough time not only to have the election by the mandated deadline but also to complete the after-election process, including a potential recount if the vote were to be close.
Tuesday’s decision made House Republicans happy and set the political wheels of politicking into motion.
"We believe that it's important that people do pick their nominees and their governor, and that they do that through an election both in a primary and in a general," says Del. Tim Armstead (R-Kanawha).
The court ruling points out state law calls for political parties to pick candidates for the governor’s seat by convention, but legislators can change the law and vote to have a primary election.
Tennant says in the case of using the convention method, each party would cover the cost.
If a primary is held, each county pays the price. Tenant estimates the total bill for a primary would cost taxpayers $3 million to $4 million. The estimates are based on the costs for the special primary and election in 2010.
Now, lawmakers must make the next move.
"It's certainly their prerogative to make any changes, and I think that's what the Supreme Court pointed out," Tennant says.
Tomblin says he'll push for a May primary and November election.
Armstead says his caucus will introduce legislation this week also calling for a May primary, but with a general election in August.
Lawmakers are also trying to strike an optimistic chord when it comes to the impact of this on the rest of the legislative session.
"We're quite capable of doing this plus the other things we need to do. We're going to concentrate mostly on the job we were sent up here to do," Thompson says.
"We did that in the past with the U.S. Senate vacancy, and we did it in relatively short order. We've got 54 more days here to serve down here," Kessler says.
The state Supreme Court ruled Tuesday that the state constitution requires acting Gov. Earl Ray Tomblin to set a special election for governor no later than Nov. 15.
That date marks one year since Tomblin took over from now-U.S. Sen. Joe Manchin.
As state Senate president, Tomblin has been acting as governor under the constitution. But he concluded that its provisions and state law didn't allow the next election for that office until 2012.
West Virginia Citizen Action Group and lawyer Thornton Cooper disagreed, and petitioned the Supreme Court.
During a news conference, Tomblin says he'll heed Tuesday's ruling. He'll also propose a special primary. State law overseeing special general elections now provides for party conventions.
The state held a special U.S. Senate election last year following the death of U.S. Sen. Robert C. Byrd. Manchin won that vote.
Keep clicking on WSAZ.com for the very latest information.
A private attorney, the AFL-CIO and the Citizens Action group all brought separate cases, which were heard at the same time, calling for a speedy election to fill former Gov. Joe Manchin's term. Manchin was elected to the United States Senate in November with more than two years left on his term.
"The people of West Virginia want a new election," Citizen Action Group attorney Kathryn Bayless told the court. "And that's what the Constitution provides for."
But the high court is wrestling with what they can do.
"If this is so important for the people, why should it not be done in the sunshine of the legislative process rather than behind the doors of the state Supreme Court?" Justice Brent Benjamin asked.
Many justices said they do not want to overstep their bounds and legislate from the bench. They say calling a special election to fill the term is something that Acting Gov. Earl Ray Tomblin and the Legislature should address.
"I understand the court's reluctance to quote, legislate, end quote -- particularly in a specific manner in this situation," Bayless says. "But it would seem to me that there has been no indication from the executive branch, or on the part of the executive branch, that they're going to address the problem in any way."
But Tomblin's attorney Tom Flaherty argued that the Constitution is clear and says that an election does not have to be held until 2012.
"They're attempting to insert language (into the Constitution) such as let's have an election as soon as possible, or as soon as practicable, or in May of this year, or in November of this year, and none of that exists in the Constitution," Flaherty says.
The justices questioned the amount of time remaining on the term and a section of the constitution which seems to contradict that.
There is no word on when the court will issue its decision.
The justices on Tuesday quizzed lawyers requesting a quick election on whether they would be intruding into an area normally reserved for the Legislature.
But the court also cited how U.S. Sen. Joe Manchin had more than two years left in his term as governor when he took up his new office in November.
That move prompted the pending case. Senate President Earl Ray Tomblin began acting as governor under the state constitution. But he's also concluded that state law does not set a new election for governor until 2012, when the office is already on the ballot.
Arguments in the case will be held at 2:00pm on Tuesday, January 11, 2011.
Thornton Cooper, State Auditor Glen Gainer, Speaker of the House Rick Thompson, the West Virginia Education Association and Secretary of State Natalie Tennant have said an election for the office needs be held before 2012.
Acting Governor Earl Ray Tomblin says legislative lawyers have argued that their reading of state law means Tomblin can serve until the next general election in 2012.
The Logan County Democrat also repeated his commitment to hold an election earlier if the Legislature decides one is necessary.
Tomblin's comments came as his office filed papers Monday with the state Supreme Court in response to two lawsuits that seek a special gubernatorial election in 2011.
State Auditor Glen Gainer also filed papers Monday expressing his belief that West Virginia's Constitution trumps the state law Tomblin is basing his argument on.
The timing of an election became an issue after former Gov. Joe Manchin left office in November after being elected to the U.S. Senate.
In a filing with the state Supreme Court on Monday, Gainer argues that West Virginia's Constitution is clear and trumps any state law covering gubernatorial succession. Gainer supports the two lawsuits that seek a special gubernatorial election.
Former Gov. Joe Manchin's election to the U.S. Senate elevated state Senate President Earl Ray Tomblin to acting governor.
Legislative lawyers have argued that their reading of state law means Tomblin can serve until the next general election in 2012.
Gainer argues if Tomblin is allowed to serve one year as governor, then the constitution will be circumvented.
Tomblin spoke out about the transition for the first time on Monday. He says it's something he's always been ready for, knowing that as Senate President he is next in line for the state's top spot.
"Throughout my tenure as Senate President I've always been mindful of this responsibility," Tomblin told a packed crowd in the Governor's reception room in the state capitol.
Tomblin has represented the Southern part of West Virginia in the legislature since 1974, when he was elected to the House of Delegates. He has lead the senate for 15 years which is longer than any person before him.
"When I became finance chair this state was virtually bankrupt," Tomblin says. "Our retirement system was in shambles and we were able to address those problems."
Looking forward he says the economy and education will be top priorities.
He's already appointed some of his key staff members but has yet to announce any cabinet or department head changes. Tomblin says he's focused on making the transition as seamless as possible.
But there is a major issue that could stand in the way. There are questions about how long he will and should remain Governor.
Tomblin says legal experts interpret the state Constitution as filling the Governor's position during the next election, which wouldn't be until 2012.
But others say voters need to have a voice sooner. Many are calling on the legislature to clear up the succession laws and call for a special election. Tomblin says he wants to hear from voters.
"Every inch of West Virginia is represented by senators and delegates," Tomblin says. "I feel that if citizens of this state demand a special election, they will let their members of the legislature know, at that time the legislature will act appropriately."
If the legislature doesn't take up the issue on its own it may be forced to do so. There is already talk of a lawsuit to challenge the interpretation of the constitution to try and put the issue to the voters sooner.
If the state does wait until the next election in November 2012, it will be a strange scenario. Voters will choose a Governor to serve what will remain of Manchin's term which will be 2-months. Then, on a separate ballot voters will choose a governor to serve the next four year term.
Tomblin says he plans to run for Governor whenever the election is held.
While he is Acting Governor Tomblin must also remain Senate President, because it is that position which gives him the gubernatorial power. But Tomblin says he will not be active in the Senate. He says he will not take part in the day to day operations of the senate, does not plan to vote and will not draw a salary. He will keep the title basically in name only. A title he must earn again in December when Democrats caucus to remain Governor.
President Pro Tempore Joseph Minard will preside over the senate in Tomblin's absence. Minard represents Harrison County and says the agenda will focus on issues like energy and education.
"The West Virginia Senate is really a well oiled machine," Minard says. "There's no reason to change anything."
Lawmakers are mixed on whether the Legislature needs to clean up the gubernatorial succession laws but they say the issue should not monopolize the entire regular session which begins in January.
House Speaker Rick Thomson, who plans to run for Governor, has challenged Tomblins decision to be hands-off in the Senate saying that leaves the Southern part of the state with one fewer vote. Thompson is calling for a speedy election.
Senate President Tomblin will take over the role of Governor when Manchin heads to Washington which is expected to happen November 15.
Tomblin on Monday also pledged a clear and organized transfer of power. Under the state constitution, Tomblin will become acting governor once Manchin's U.S. Senate win is certified. Officials hope that happens this week.
Tomblin is also not ruling out an early election. He said he wants to hear from voters, while also weighing costs and legal issues.
Legislative lawyers have concluded that the next election for governor won't be until November 2012.
Tomblin addressed a packed governor's Capitol reception room at Monday's press conference.
Senate President Earl Ray Tomblin is holding a Monday news conference at the state Capitol, his first since Gov. Joe Manchin won the special U.S. Senate election.
Under the state constitution, the Senate president acts as governor when that office becomes vacant.
The 58-year-old Tomblin is expected to talk more about his incoming administration. He named several senior staffers on Friday.
Tomblin also faces questions about his upcoming dual roles, and on when West Virginians can next vote for governor.
Both Manchin and Tomblin are Democrats. Manchin is awaiting certified election results before he resigns to take his U.S. Senate seat. The canvass process begins Monday.
State law is clear, Senate President Earl Ray Tomblin will become acting governor. At a news conference on Wednesday, Manchin said that transition already has begun.
Tomblin has named Rob Alsop as his chief of staff to replace Manchin's chief of Staff Jim Spears. Manchin says Alsop met with his staff throughout the day to start the transition.
But the transition may be the easy part. There are conflicting opinions about how long Tomblin can remain governor.
Tomblin and his legal counsel interpret the state Constitution as allowing him to fill the role until the next general election, which will be in 2012.
But others say voters need to have a say before that.
Speaker of the House Rick Thompson says succession laws also say if there is more than a year left on a term, which there is, an election has to be called.
Thompson says he will run for governor in the next election, whenever that is. He wants Manchin to call a special session of the Legislature before he heads to Washington so lawmakers can address the succession laws.
Manchin says he will not call the special session because there is not enough agreement on the issue.
Other lawmaker like Senator Brooks McCabe, a Democrat from Kanawha County, and House Minority leader Tim Armstead, a Republican from Kanawha County, say they would like for the issue to be clarified by the Legislature.
The issue may also end up in court. Charleston attorney Thornton Cooper has said he plans to challenge the succession law.
Another concern is separation of power. Tomblin would continue to preside over the Senate while acting as governor.
If a special election is called to replace Manchin, there are also questions about when.
If it is not until 2012, there could be two governors' races simultaneously -- one for the unexpired term of two months and the other for the next four-year term.
Manchin says there is not a clear timeline on when he will head to Washington. The election first has to be certified. Manchin says he hopes to be in Washington by Nov. 15 when the lame duck session begins.
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