Most observers predict that West Virginia Governor Joe Manchin will be elected to the U.S. Senate on November 2, 2010.  West Virginia elects its Governors in presidential election years, so assuming Manchin is elected to the Senate, he will then resign from being Governor halfway through his gubernatorial term.

This article explains why no one seems to know if West Virginia will then hold a special election for Governor.  The problem is the West Virginia Constitution, which is laughably unclear about that.

On August 6, the U.S. Court of Appeals, D.C. Circuit, invalidated National Park Service regulations that require a permit before any leaflets may be distributed within any part of a national park, or before any assembly or meeting may be held anywhere within a national park.  The United States has 391 national parks.  Some are urban but most are not.  The Court left plenty of room for the government to draft new regulations that are more subtle.

The Court was most concerned about small groups, or individuals, who may want to engage in First Amendment activity in parks and not be forced to apply for a permit and wait for perhaps 10 days for the permit to be issued.  The decision does not mention petitioning but the decision’s principles obviously relate to petitioning.  Here is the 29-page decision, Boardley v U.S. Department of the Interior.  It is written by Janice Rogers Brown, a Bush, Jr. appointee, and co-signed by David Sentelle, a Reagan appointee, and Brett Kavanaugh, another Bush, Jr. appointee.  Thanks to Eric Brown’s Political Activity Law blog for the link.

On August 2, U.S. District Court Judge John T. Grady ruled that the special U.S. Senate election ballot in Illinois should contain the names of the various candidates who had already qualified for the regularly-scheduled U.S. Senate election.  His 5-page ruling is here.  It says, “The candidates placed on the special election ballot must be limited to a manageable number and should be chosen, not arbitrarily, but for having demonstrated a measure of popular support for the office of U.S. Senator.”

On Friday, incumbent U.S. Senator Roland Burris filed a notice of appeal in that case, Judge v Quinn, 09-2219, in the 7th circuit.  Burris isn’t running for the regular term but he would like to run in the special election.  Logic seems to be on his side.  It does not follow necessarily that any court should decide on its own who is entitled to run in one particular election, based on who is already running in another election.  The special election for the term November 2010-January 2011 is not the same event as the regular election for the January 2011-January 2017 term.  As of August 9, the 7th circuit has not set a briefing schedule for Burris’s appeal.

The U.S. District Court decision of August 2 implies that the 7th circuit already decided this issue in a 1970 case, but the 1970 court decision did not deal with that question.  A member of the U.S. House from Illinois had died on August 13, 1969.  The Governor decided to leave the seat empty until after the 1970 election.  Some voters sued on December 16, 1969, demanding a special election, but the U.S. District Court ruled against them.  The voters appealed, and won in the 7th circuit on May 6, 1970.  The Illinois primary had already been held by then, on March 17, 1970.  The 7th circuit didn’t tell the state in 1970 how to let parties nominate candidates for the special election.  In practice, in 1970, the state then let the major parties decide by party meeting whom to nominate.  There is no court precedent from 1970, or in any court at any other instance, as far as is known, that lets a judge decide whom the party nominees should be, without any official input from the political parties.  Thanks to Jeff Trigg to the link to the decision.