§3-10-3. Vacancies in offices of state officials, United States senators and judges.Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals or in any office created or made elective to be filled by the voters of the entire state, judge of a circuit court or judge of a family court is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, the appointment is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term. Proclamation of any election to fill an unexpired term is made by the governor of the state and, in the case of an office to be filled by the voters of the entire state, must be published prior to the election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication is each county of the state. If the election is to fill a vacancy in the office of judge of a circuit court or judge of a family court, the proclamation must be published prior to the election as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication is each county in the judicial or family court circuit.
emphasis added.
Of course, what matters is how that statute has been interpreted by the WV Supreme Court. There is a precedent, and it's not encouraging. It may be found here. The circumstances almost exactly mirror this particular instances. The primary had passed, but there was still an upcoming general election. The Repuclicans sued to get the vacancy filled during that general election. The WV Supreme Court ruled for the Democrats and said this in the opinion...
" In view of the foregoing, we conclude that Section 7 of Article VIII, along with W. Va. Code, 3-10-3, controls the governor's right to appoint a person to fill a vacancy in the office of supreme court justice or circuit judge. The relator is not entitled to have the office filled at the November, 1994, general election.See footnote 12 We, therefore, decline to issue a writ of mandamus. "
Essentially, we're screwed.
It’s almost like they kept him alive just long enough to avoid an election.