39 (1871), is a 6–3 ruling by the Supreme Court of the United States that held that if a governor has discretion in the conduct of the election, the legislature is bound by his action and cannot undo the results based on fraud.

[2][3] At a convention called by the governor and authorized by the legislature, delegates voted on April 17, 1861 to approve Virginia's secession from the United States.

[13][15] The region elected new US Senators, and its two existing US Representatives took their old seats in the House, which effectively gave congressional recognition to the Reorganized Government as well.

[18][19][20] The ballot also allowed voters to choose delegates to a constitutional convention, which met from November 26, 1861 to February 18, 1862.

[21] The convention chose the name "West Virginia" but then engaged in lengthy and acrimonious debate over whether to extend the state's boundaries to other counties that had not voted to secede.

[28][29][30] Lincoln was unsure of the bill's constitutionality, but pressed by northern senators, he signed the legislation on December 31, 1862.

[34] Since they were then under the military control of the Confederacy, Berkeley, Frederick, and Jefferson Counties never held votes on secession or the new West Virginia state constitution.

[37] The elections were held, voters approved secession, and Berkeley and Jefferson Counties were admitted to West Virginia.

West Virginia filed a demurrer, which alleged that the Supreme Court lacked jurisdiction over the case because it was of a purely political nature.

He concluded that the demurrer could not be granted "without reversing the settled course of decision in this court and overturning the principles on which several well-considered cases have been decided.

If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State.

Although the elections had been postponed because of a "hostile" environment, the majority concluded that the Reorganized Government of Virginia had acted in "good faith" to carry out its electoral duties in the two counties.

Congress could not be expected to give its explicit consent to every single aspect of the proposed state constitution, Miller argued.

[47] Clearly, Congress had intensively considered the proposed state constitution, which contained provisions for accession of the two counties in question, because Congress had seriously considered the slavery question regarding the admission of the new state and required changes in the proposed constitution before statehood could be granted.

Davis concluded that Congress had never given its consent to the transfer of Berkeley and Jefferson Counties to West Virginia.

[53] Davis disagreed with the majority's view that Congress had consented to the transfer of the two counties by debating the proposed West Virginia constitution.

[54] Congress had not agreed to additional legislative acts of transfer and thus they could not be made without Virginia's assent, which had since been withdrawn.

[55][56] Chief Justice Chase delayed taking up the case until a majority had emerged in favor of affirming the Court's original jurisdiction, rather than seeking a ruling on the issue.

[57] It is noteworthy that former Associate Justice Benjamin Robbins Curtis argued unsuccessfully the case on behalf of Virginia before the Court.

[26][27] Many scholars since have questioned the democratic nature of the Second Wheeling Convention, the legal and moral legitimacy of the Reorganized Government, and the constitutionality of the creation of West Virginia.

[60] The Supreme Court had held in Luther v. Borden, "Under this article of the Constitution it rests with Congress to decide what government is the established one in a State.

As one legal scholar has noted, Michigan was admitted to the union after irregular elections for three unauthorized constitutional conventions led to a request for statehood being eventually granted by Congress in 1837.

[63] Kansas, despite undergoing a highly irregular statehood process marked by violence, mass meetings masquerading as legislative assemblies, and allegations of vote fraud, was also admitted to the Union.

If the former interpretation is adopted, not only West Virginia but also Kentucky, Maine, and possibly Vermont were also created unconstitutionally.