It appears that the West Virginia Secretary of State is preparing to call a special election for 2012 to replace former Senator Robert Byrd.  This is presumably done on the basis of Code Section 3-10-3, which provides that "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."

Since the primary election was held last May, the thinking goes, the next primary would be May 11, 2012, with the election that November.

But intrepid reader Judy White points out that the filing deadline for third parties isn't until July 30, 2010, and the filing deadline for write-ins isn't until September 21, 2010.  Could some enterprising Libertarian/Green collect enough signatures to get his or her name on the ballot, and force a November election?  I'm guessing not, since there's no "primary next," but what if the Libertarians hastily put together a primary in August?  Again, this is pretty theoretical, but given the horrendous wording of the law, I'm not certain this wouldn't work.

Also, regarding my hypothesized Seventeenth Amendment challenge, also-intrepid reader Tom Shriner, Jr., points out a recent Seventh Circuit decision that isn't entirely on point, but which suggests in a footnote that the Second Circuit/Supreme Court decisions aren't necessarily as controlling as I had thought.  I'll confess that the idea that a "temporary" appointee could serve almost half of an unexpired term seems to me to pretty directly contravene the Seventeenth Amendment's clear preference for elected Senators, but what do I know?  Maybe that's why I don't have an Article III commission.

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