PARKERSBURG - The West Virginia Supreme Court on Tuesday will hear arguments on whether the state should hold a special election for the vacancy in the office of governor.
The West Virginia Citizen Action Group in November filed the lawsuit naming Senate President Earl Ray Tomblin, House Speaker Richard Thompson and Secretary of State Natalie Tennant. The petition was joined with a lawsuit by Thornton Cooper of Charleston.
Tomblin, who by virtue of being Senate president became acting governor in November upon Joe Manchin's election to the U.S. Senate, has said he will not call a special election. Legislative attorneys this fall said state law doesn't require a special election until 2012.
The court on Wednesday scheduled oral arguments for 2 p.m. Tuesday. Justice Robin Davis was recused and replaced with Preston County Circuit Court Judge Lawrence S. Miller Jr.
Justices will hear from attorneys representing the Citizens Action Group, Cooper, Thompson, Tennant, Tomblin and Kenneth Perdue, president of the West Virginia AFL-CIO.
The group believes the constitution requires a special election prior to 2012. Otherwise, the state will have no elected governor for two years, the Citizens Action Group said.
"Because the West Virginia Constitution does not permit this result, (the Citizens Action Group) seeks a writ of mandamus from this court ordering a new election for governor to be held within ninety days from the issuance of the writ," the Citizens Action Group said in its petition.
Thompson also supports a special election. Article VII, Section 16 says the Senate president may not act as governor for almost two years "without calling for a new election to fill the vacancy," Thompson's response said.
Tennant said she is the administrator of elections, but doesn't have the authority to call an election.
"However, if this court determines that a special election is required, that election will be of significant interest to the secretary of state because she will be its chief administrator with the duty to oversee its fairness and assessibility,'' Tennant's response said.
Tomblin said the election code is constitutional and consistent with other provisions to fill vacancies.
"Further, the current election code, which allows for Tomblin to act as governor until the next general election in 2012, is not only constitutional, but absolutely critical to ensuring the uninterrupted continuation of government," Tomblin's response said.
The West Virginia Education Association and Auditor Glen Gainer also filed friend of the court briefs in support of the Citizens Action Group.