Acting Gov. Earl Ray Tomblin has yet to satisfy some critics of his plan to put aside his duties as Senate president while he serves as the state’s chief executive. He also faces a legal challenge, filed Friday by West Virginia Citizen Action Group, demanding an early special election for governor.
Just three other states place a legislative leader in the governor’s office when there’s a vacancy. Most have a lieutenant governor who is elected statewide.
But the procedures followed by other states could help West Virginia lawmakers studying whether to revise the state’s vacancy process for future situations. A House-Senate subcommittee is drafting about five proposals to discuss at next month’s interim meetings.
A fellow Democrat, House Speaker Richard Thompson, is among those who oppose Tomblin’s remaining in the legislative branch and acting as governor. Tomblin succeeded U.S. Sen. Joe Manchin, who took up his new office last week with more than two years left in his second term as governor.
The separation of powers question also overlaps with calls for an election for governor before 2012, when the office is already on the ballot for a new four-year term. Legislative lawyers have concluded that relevant state law won’t allow for an earlier vote.
But that legal analysis also raised questions as to whether the law accurately reflects the intent of the state constitution’s language addressing a vacancy in the governor’s office. Friday’s Supreme Court petition by the citizens’ group invokes that debate, while also raising separation-of-powers concerns.
Forty-three states elect a lieutenant governor. Another three — Arizona, Oregon and Wyoming — rely on the elected secretary of state to succeed a departing governor. West Virginia is among the remaining states that fill a vacancy with the leader of their Senate.
But even with these states — Maine, New Hampshire and Tennessee — there are differences.
Maine specifically suspends the Senate president’s duties when he or she is acting as governor. Its constitution also includes an exception in its provision declaring the branches of government as separate. West Virginia’s constitution lacks that language.
New Hampshire amended its constitution in 1984 to make clear that the acting governor does not perform any legislative duties. That change also sets up a special election if there’s more than one year left in the vacating governor’s term. Maine’s constitution provides for a new election if the vacancy occurs more than 90 days before its June 8 midterm primary.
Tennessee, where a speaker presides over the Senate, has a brief, 70-word constitutional provision setting that office first in the line of succession. But another provision says that no one who holds any federal or state office ‘‘shall execute the office of governor.’’
Officials there interpret that to mean that the Senate speaker would permanently resign that post to fill a vacancy. The state has considered crafting a temporary fill-in provision since Gov. Phil Bredesen was hospitalized for several days in 2006 with an illness that may have been caused by a tick bite.
West Virginia’s Senate president would lose his or her legislative seat upon becoming governor, under one of the proposals the House-Senate interim committee is drafting.
Two others have the president temporarily fill a vacancy pending a special election, but with differing timing for a vote. One of those would suspend the Senate president’s legislative powers while acting as governor.
The other two measures proposed amending the constitution, either to create the office of lieutenant governor or to extend that duty to the treasurer or secretary of state. Both of those are already elected statewide. Each measure would require the would-be successor to run in tandem with the governor, and hail from the same party.
Lawrence Messina covers the statehouse for The Associated Press.