PARKERSBURG - A special election for the unexpired term of governor should be immediately called, the auditor of the state of West Virginia said Monday in a brief to the Supreme Court.
Auditor Glen Gainer said the state Constitution overrides state law in a brief in support of the lawsuit by West Virginia Citizens Action Group and Thornton Cooper that asks the high court to call a special election for the term expiring Dec. 31, 2012.
Acting Gov. Earl Ray Tomblin, who became governor Nov. 15 by virtue of being Senate president when Joe Manchin because a U.S. senator, has indicated he doesn't intend to call a special election.
Legislative attorneys earlier said state law allows for a special election in 2012 for the unexpired term that would coincide with the elections for the regular term commencing January 2013.
The eight-page filing said residents "need and deserve a governor, our state's highest executive, who has been elected under the irreducible authority of the clear terms of the West Virginia Constitution.
"Any statutory provision that allows those clear constitutional terms to be circumvented or contradicted should be deemed unconstitutionally void by this court," the brief said.
The constitution is clear when a vacancy occurs before three years of a four-year term have expired that a special election must be held, Gainer said.
The West Virginia Education Association, the AFL-CIO and Charleston lawyer Charles McElwee have filed briefs in support of the lawsuit and believe an election should be held in 2011. Monday was the deadline to file briefs.
Also on Monday Secretary of State Natalie E. Tennant filed her response to the Citizen Action Group's suit. The suit names the secretary of state, Tomblin and House Speaker Rick Thompson. Tennant, the state's chief elections officer, said she doesn't have the authority to call an election.
"In our brief we gave a general timeline, with no dates set in stone," Tennant said. "We wanted to show how it would progress if there were a special election for governor in 2011. Our goal in the secretary of state's office is to protect voters and third-party candidates to make sure they have access to the ballot."