Vacancies in Office & Unexpired Terms
Basic Principles
The West Virginia State Constitution provides a clear mandate that all elective state and local
offices should be filled by the voters as soon as possible after a vacancy occurs. State
law steps in to spell out how vacancies are filled temporarily, and to resolve issues about how
candidates will be nominated and when the office will again be filled by election.
The United States Constitution governs how vacancies in the Congress are filled. Although the Governor
appoints to fill a vacancy in the U. S. Senate, only the voters may fill a vacancy in the House of
Representatives, even for a few months.
Filling an unexpired term when a vacancy occurs can become a complicated legal issue. The
rules differ for different offices and for different times during a term. Regardless of
the differences, however, the law provides a specific way to insure that elective offices don't
remain vacant. Use this links to go to more information below.
Federal State Executive State Legislative Judicial County Municipal
Vacancies in Federal
Offices
United States
Senate
Vacancies in the U. S. Senate are filled by
appointment of the Governor, and the appointed Senator serves
until the next election that is more than two years and six
months away from the date of the vacancy. In other words,
if a vacancy occurs after the specific day in May of an election
year which marks the 2-year 6-month cutoff, the appointment
would not be filled at the election held that fall, but the
appointee would serve until the certification of the election
two years following. The law does not provide for
nominations from any committee.
These provisions are set out in West Virginia
Code §3-10-3.
United States House of
Representatives
No appointments are allowed to the U. S. House
of Representatives by the U. S. Constitution. The framers
of the Constitution by this provision insisted that
Representatives be elected by the people.
Nominations to fill vacancies, even for a short
time, are made by a convention called for the purpose by each
party, followed by a special election in which the voters choose
among the nominees. The convention in each political party
is called and conducted by the Congressional District Executive
Committee.
These provisions for filling the vacancy are set
out in West Virginia Code §3-10-4.
Vacancies in State Executive
Offices
The Governor has the power to fill
vacancies in most state executive public offices, except for Governor. When an elected official resigns,
retires or dies, the term is filled by this appointment, usually until the
next election allows the citizens to choose a successor. The Governor must appoint a
person who meets the qualifications of the office. The law does not
provide a nominating process for state executive officials.
Governor
The Governor cannot appoint his or her own
successor, so that authority has been assigned to the President of the Senate,
to be followed immediately by a special election These provisions
are set out in West Virginia Code §3-10-2.
Other State Executive Offices
Vacancies in the offices of Secretary
of State, State Treasurer, State Auditor, Attorney General,
and Commissioner of Agriculture are filled by appointment until the next
election that is more than two years and six months following the
vacancy. The phrase "Until next election..." means "until a general election at which a person is elected to
the unexpired term and that election is certified and the new official is
declared elected." If the
office is scheduled to be on the ballot at the next general election, the
appointee will complete the current term and the new term will be filled by
election. These provisions are set out in West Virginia Code §3-10-3.
Vacancies in State Legislative
Offices
Vacancies in the State Senate and House of
Delegates are also filled by appointment of the Governor.
Unlike executive appointments, the
law provides methods for certain committees to offer formal nominations, and
if the conditions are met, the Governor must select from the nominations
provided. This table reflects the requirements and WV Code citations.
State
Senate |
Appointed until
next election if more than two years and two months of term remain. Must
select from three nominees submitted by appropriate Senatorial
District Executive Committee, or for single-county districts, by the
county executive committee of the same party as the former Senator, if committee provides nominations
within 15 days of vacancy. |
§3-10-5 |
House
of Delegates |
Appointed until
the end of the term. Must select from three nominees submitted
by appropriate Delegate District Executive Committee, or for
single-county districts, by the county executive committee of the
same party as the former Delegate, if committee
provides nominations within 15 days of vacancy. |
§3-10-5 |
Vacancies in Judicial
Offices
The Governor appoints to fill any
vacancy in judicial office, and the law does not require the
Governor to consider nominations. This table reflects the
requirements and WV Code citations.
Justice
of the Supreme Court of Appeals |
Until
next election if more than two years and six months of term remain. No
nominations. |
§3-10-3 |
Circuit
Judge |
Until
next election if more than two years of term remains. No
nominations.
|
§3-10-3
|
Family
Court Judge |
Until
next election if more than two years of term remains. No
nominations.
|
§3-10-3
|
Vacancies in County Offices
Vacancies in local offices are filled by local officials, but only until the
next election, or the end of the term if the office is on the ballot in the
next election. If a vacancy occurs shortly before a general
election and the office is not on the ballot, the office will ordinarily be
filled at that election, even if only a small number of write-in votes have
been cast.
This chart shows the office, who appoints to fill that office, and the code
citation. Please use the WV Code at the website of the West
Virginia Legislature to find the text of these provisions.
County
Commission |
Appointed
by remaining commissioners. If commissioners cannot agree,
each nominates one person and the chief judge draws by lot from the
nominees. Appointee must be eligible, from open magisterial
district, and a member for one year preceding of the same political
party as the former commissioner. |
§3-10-7 |
| Clerk of
the County Commission |
Appointed by
county commission.
Appointee must be eligible and a member of the same political party
as the former clerk. |
§3-10-7 |
| Clerk of
the Circuit Court |
Appointed
by a majority vote of the circuit judges of the circuit, or the
chief judge if the court is in vacation. Appointee must be eligible and a member of the same political party
as the former clerk. |
§3-10-6 |
| Prosecuting
Attorney, Sheriff, Assessor, Surveyor |
Appointed by
county commission.
Appointee must be eligible and a member of the same political party
as the former clerk. |
§3-10-8 |
| Magistrate |
Appointed
by the circuit judge, or the
chief judge if there is more than one judge in the circuit. There
is no requirement that the appointee be a member of the same political party
as the former magistrate. |
§50-1-6 |
Vacancies in Municipal Office
Unless otherwise provided by
charter or ordinance, a vacancy in any municipal office is
filled by majority vote of the municipal governing body.
In the case of a vacancy in the office of mayor, the recorder
serves as acting mayor until the vacancy is filled.
Ordinarily, sitting members of the municipal governing body are
eligible to be considered for appointment to other
positions. Appointees must be residents of the
municipality. This provision is set out in WV Code
§8-5-10. Please use the WV Code at the website of the West
Virginia Legislature to find the text of this provision.
|
