Steptoe & Johnson

Carte Goodwin Named to United States Senate by West Virginia Governor Joe Manchin

Who Are the Goodwins?

What Happens Next?

West Virginia Governor Joe Manchin has named Charleston lawyer Carte Goodwin to fill the vacancy in the US Senate caused by the death on June 28th of Robert C. Byrd, the longest serving Senator in United States history. Even as the Governor took this action, it remained legally unclear how long Goodwin can serve in the position and what happens next, as the Legislature is still meeting in regular session to clarify the law.

Carte Goodwin – Part of a Family of Public Service

Governor Manchin himself is a member of a West Virginia political family elected to public office. His uncle, A. James Manchin was elected both Secretary of State and State Treasurer. Other prominent families elected to public office include current Congresswoman Shelley Moore Capito, whose father Arch Moore, served 3 terms as Governor, and Congressman Alan Mollohan, whose father Robert preceded him in office. And of course, Senator Jay Rockefeller is part of a family elected to high office in several states, including his uncles, New York Governor (and Vice President) Nelson Rockefeller and Arkansas Governor Winthrop Rockefeller.

Incoming United States Senator Carte Goodwin is a member of a family who has chosen to engage in public service through appointment. He is in the second generation of a tradition started by his late father, Steve, and Steve's brothers, Tom and Joseph of Ripley, a town of 3000 about 30 miles north of the state capital of Charleston. Here is a look at the Goodwin family history of public service.

Carte Goodwin: US Senator apparent. Named by Governor Joe Manchin in 2010. Appointed Governor Manchin's legal counsel in 2005 and served for 3½ years. After leaving that position, he was appointed Chair of the Governor's Independent Commission on Judicial Reform which issued a report late last year.

Rochelle "Rocky" Goodwin: State Director, US Senator Jay Rockefeller. Carte's wife. Appointed by Senator Rockefeller in 2008, and has held the position to the present. She had served as Deputy since 2006.

Steve Goodwin: Chair, West Virginia University Board of Governors. Carte's father. Initially appointed to the Board by Governor Bob Wise in 2002 and reappointed by Governor Manchin in 2006, he served in this position until October 2009, only six months before his untimely death in April of this year.

Joseph R. Goodwin: US District Court Judge for the Southern District of West Virginia. Carte's uncle. Appointed in 1995 by President Clinton to this position, which he continues to hold. He previously served as state Democratic Chairman during the Administration of then-Governor Jay Rockefeller.

Kay Goodwin: West Virginia Secretary of Arts and Education. Carte's aunt (married to Judge Goodwin). Initially appointed by Governor Wise in 2001 and reappointed by Governor Manchin to this position, which she continues to hold.

Booth Goodwin: United States Attorney for the Southern District of West Virginia. Carte's first cousin (son of Judge Goodwin and Secretary Kay Goodwin). Appointed in 2010 by President Obama to this position, which he continues to hold.

Tom Goodwin: Former Tax Commissioner and Chief-of-Staff to then-Governor Rockefeller, 1977-1980. Carte's uncle. Currently in private practice.

What Happens Next

Senator Robert C. Byrd's death last month highlights a lack of clarity in state law, and has set in motion a series of changes in the state's political system.

The longest serving Senator in United States history, Senator Byrd died on June 28, with just over 2½ years left in his term that expires January 3, 2013.

The procedure for filling out the remainder of the term immediately underscored the state's confusing and awkward laws on succession, not only to the US Senate but also for Governor.

The US Senate Vacancy Issue

The state's popular Governor, Joe Manchin, has indicated he is interested in serving out the remainder of Byrd's term, but he first had to contend with conflicting opinions as to how that can be done. His term as Governor also ends in 2013, so to take a seat in the US Senate, he would have to leave before the end of his time in the Governor's mansion.

Shortly after Senator Byrd's death, Secretary of State Natalie Tennant wrote an opinion determining that the Governor could appoint someone to fill Senator Byrd's term until the general election in November 2012 at which time a "permanent" successor would be chosen to complete the remaining 2 months of the term. She acknowledged this was a strange result, but she had to follow the law.

Organizations as diverse as the AFL-CIO and West Virginia Coal Association called on Governor Manchin to appoint himself to the Senate seat, but he said it would not be appropriate to do so.

A few days later, Attorney General Darrell McGraw wrote an opinion contradicting the conclusion reached by the Secretary of State. McGraw said the 17th Amendment to the US Constitution calls for the election of Senators, so an appointment of over 2½ years would violate this principle, and suggested an election for a "permanent" successor be held on November 2, the date already scheduled for the general election.

Thanksgiving Turnover

With conflicting opinions from the Secretary of State and the Attorney General, Governor Manchin called a special session beginning yesterday to clarify the law. The Legislature continues to work on the particulars of the bill, but it appears there will be a primary election on Saturday August 28, followed by election of a "permanent" successor at the November 2 general election. If the bill passes as expected, Carte Goodwin would serve as Senator until the general election results are certified, likely to be about 3 weeks later.

Manchin as Front Runner

Governor Manchin has said it is "highly likely" he will run for the US Senate to take office when Carte Goodwin's short term in office expires, and political observers universally believe he will do so. He enjoys a 75 percent approval rating. He is thought to be considerably more popular than any potential Republican. A Rasmussen poll earlier this month showed him leading the state's most prominent Republican, Representative Shelley Moore Capito of the 2nd Congressional District, by 53 to 39 percent.

Despite the fact that Manchin would be running in an extremely Democratic state (the only statewide GOP officeholder is Supreme Court Justice Brent Benjamin), the Republican party has begun to spend money in anticipation of a race against the Governor. It took out full page newspaper ads earlier this week, attempting to tie Manchin with President Obama, who lost to McCain in the state, and other national Democratic leaders thought to be unpopular. It has also filed a Freedom of Information Act request for a host of information since Manchin took office 5 years ago. One concern expressed by some within the Republican ranks is that Manchin's unexpected position at the top of the ticket could harm the party's chances in the 1st and 3rd Congressional Districts, where David McKinley and Spike Maynard are pitted against Democrats Mike Oliverio and Nick Joe Rahall, respectively.

GOP Dilemma

The GOP's interest is further complicated. Congresswoman Capito has already won the GOP primary for re-election to her House seat, and she almost certainly will glide to an easy re-election, as her Democratic opponent is unknown and unfunded.

If she chooses to run for Senate, she also has two problems to overcome with state law. One statute provides that no person can run for more than one office at the same election. She could argue that the special election on November 2 is not really the same election as the general on that same date, but even if successful, she would have to explain why she should run for two offices at the same time and later choose the one in which she wishes to serve. A second problem is that state law does not make it easy for her to withdraw as a candidate for the House. She would have to obtain approval from the state Election Commission, which typically permits candidates to withdraw only when they would be unable to serve either because of health or transfer to a different jurisdiction. For the Election Commission to rule that a candidate can withdraw because an unexpected different office has opened could set an unacceptable precedent.

Capito is not the only potential Republican candidate. Morgantown businessman John Raese has expressed an interest, and he has run for the US Senate twice before. He ran in 1984 and narrowly lost to Jay Rockefeller, and again in 2006 against Senator Byrd, where he lost overwhelmingly. He has his own issues within the party, but has the resources to self-fund and could conceivably run in the GOP primary for Senate even if Capito herself seeks the position.

The timing of this fundamental shift has come while the state Republican party is in a state of flux. Current party chair Doug McKinney, a Bridgeport physician, is being challenged by Mike Stuart, a lawyer with Steptoe & Johnson here in Charleston, and the election for head of the state GOP will take place July 24.

Meanwhile, no one appears on the horizon to challenge Manchin for the Democratic party nomination for Senate, and political observers believe the most likely outcome is that he will be elected to the US Senate, and vacate the Governor's office around Thanksgiving. If so, phase two of the state's uncertain future kicks in.

Senate President Serves as Acting Governor – Then What?

The state's law on succession to the US Senate is flawed, but the law on gubernatorial succession is even less clear. Leaders, including Governor Manchin, say it needs revision, but clarification of that law is not being considered during the current special legislative session.

The State Constitution provides that when there is more than a year left when the Governor's office becomes vacant, the Senate President is to act as Governor and "a new election for governor shall take place to fill the vacancy."

The change in the Governor's office in late November or early December would take place shortly before the regular 60-day session of the Legislature beginning January 12.

It appears likely that current Senate President Earl Ray Tomblin (D-Logan) would serve as Acting Governor through most, if not all, of the regular session, and that the day-to-day presiding of the state Senate would be done by Senate President Pro Tem Joe Minard (D-Harrison). There is a possibility, considered remote, that the Senate could elect a different person as Senate President as the Senate must elect a President when it reorganizes after the November election, calling into question whether Tomblin or a new person would be Acting Governor.

The statute implementing the Constitutional provision on filling a vacancy in Governor is difficult, and a literal reading suggests that when the vacancy occurs after a general election (such as that in November of this year), the permanent successor would be chosen from candidates nominated at the next primary followed by the next general election. This could result in the same awkward circumstance that Secretary of State Tennant said would result for US Senate: the temporary office holder would serve through the general election in November 2012, where the successor is chosen to serve for only the remaining two months of the term, and it's also possible there could be differing opinions by the Secretary of State and Attorney General as how to proceed.

An alternative reading of current law would be for the Acting Governor to call for a special election at a time yet to be determined, where candidates are chosen at state party conventions instead of party primaries. Delegates to the state party conventions would be selected at 55 county conventions, an unorthodox process that could lead to unexpected results. Such a system would presumably benefit organized interests such as the Tea Party in the GOP, and labor and teachers in the Democratic party, and could possibly work against the nomination of middle of the road candidates in either party.

There are several public officials who have either expressed direct interest in becoming Governor or are the subject of intense speculation. These include Senate President Earl Ray Tomblin (D-Logan), House Speaker Rick Thompson (D-Wayne), Senate Judiciary Chair Jeff Kessler (D-Marshall), Senator Brooks McCabe (D-Kanawha), State Treasurer John Perdue (D) and Congresswoman Shelley Moore Capito (R-2nd CD). If there is a special election for Governor before 2012, there is nothing that would appear to require any of them to abandon their current offices to seek election to the Governor's mansion.