Viewing Capito as their party's top prospect, Republican lawmakers seek to allow her to pursue Byrd's seat without giving up her bid for a sixth U.S. House term. Capito, who turns 57 in November, has expressed a strong desire to run through her House campaign but has not yet announced a decision.
The measure under debate since Thursday would add the seat held by the late U.S. Sen. Robert C. Byrd to this year's general election. The winner would take over that month from Carte Goodwin, appointed Friday by Gov. Joe Manchin to fill the vacancy in the meantime. Byrd died June 28 at age 92, history's longest-serving member of Congress.
Byrd was a Democrat, as is Manchin and Goodwin. With that party expected to lose Senate seats in November, the legislation would put another Democratic Senate seat in play as the party struggles to retain its majority.
But Republicans have alleged throughout the special session that the bill as introduced aimed to benefit Manchin. The governor has said it's "highly likely" that he'll run. GOP lawmakers argue Manchin has crafted the measure to deter any serious challengers.
State law bars anyone from being a candidate for more than one public office "at any election." Capito supporters argue the special election for Byrd's seat should be treated separately from the already scheduled general election.
After several attempts by other Republicans, Senate Minority Leader Mike Hall successfully amended one version of the bill to make that happen. The amendment prevailed late Saturday in the Democratic-controlled Senate by a voice vote that sounded unanimous.
The House disagreed with the Senate's changes to the bill overall, setting the stage for a joint conference committee to attempt a compromise version. The bill idled Sunday, and state election officials had questioned whether they could keep the needed timetable if it didn't pass by then. A Manchin administration official said the proposed election could still stay on schedule if a bill passed Monday.
But if the bill fails, GOP lawmakers suggest any election declared by Manchin would allow for a dual Capito candidacy. They note that state Attorney General Darrell McGraw, a Democrat, had concluded that the governor has the power to declare a special election for a U.S. Senate vacancy under such circumstances.
The measure's success appears far from assured. The House initially voted 42-45 Saturday to defeat the bill, before later reconsidering and passing it 46-37. But with 67 votes needed to make the bill effective upon final passage, a bid for that failed 50-34.
All Republicans presented voted nay in each of those roll calls. But so did 19 Democrats when the bill was voted down, while seven Democrats opposed the effective date attempt. That party holds 71 of the House's 100 seats.
As an alternate route, Capito supporters have argued that the special election for Byrd's seat be held after Nov. 2, ensuring a separate ballot for that office. Lawmakers from both parties have questioned during the session whether potential candidates, military voters stationed overseas and other would-be participants would be shorted by the special election's proposed timetable.
Capito herself suggested that Nov. 2 could serve as the primary. Her House campaign issued a press release that called the pending legislation "a band aid solution for this crisis." The state Republican Party on July 5 had called on Manchin to place the vacant seat on the Nov. 2 ballot.
In that Friday statement, Capito also echoed the GOP lawmakers who dismiss the bill as a vehicle to ensure a Manchin election win.
"It is apparent that many elected officials, and particularly the person ultimately charged with calling a Special Election, have been more focused on political maneuvers to further their own political ambitions before fulfilling the obligations of their office on behalf of the people they were elected to serve," the statement said.
Lawrence Messina covers the statehouse for The Associated Press.