Legal Challenge Brewing Over Byrd's Seat

West Virginia's Democratic secretary of state, Natalie Tennant, has said that the Mountaineer State will not hold an election to replace the late Sen. Robert Byrd until 2012; a temporary replacement, appointed by Democratic Gov. Joe Manchin, will hold the seat until then according to Tennant's plans. But Hotline OnCall's Reid Wilson reports today that Republicans are preparing to sue the state in an attempt to force a special election in November 2010:

The RNC and the WV GOP are exploring ways to bring a lawsuit that would force the Mountaineer State to hold an election earlier than planned, the sources said. That could be the best option for the GOP, which believes it can win Byrd's seat in this favorable political climate.

But it will involve compelling the state to actually hold the contest. WV Sec/State Natalie Tennant (D) said last week that Gov. Joe Manchin's (D) eventual appointee would be able to serve until the '12 elections. And election law precedent appears to be on Tennant's side, given a WV Supreme Court decision from '94.

The RNC has already transfered money to the state GOP, according to a committee source.

Advantages and disadvantages to this challenge: Republicans would get to vie for the seat in an election year that's looking spectacularly bad for Democrats, by some accounts, in a state where President Obama's approval rating is low (in May 2009, it was 39%, lower than the 43% he collected against John McCain), and in which a Tea-Party-backed candidate recently won a Democratic congressional primary, bouncing the incumbent from his reelection race. On the downside, the Republican who seems most likely to challenge for Byrd's seat, Rep. Shelly Moore Capito, would have more time to raise money and build a Senate campaign if the race were held in 2012.