Thursday, February 26, 2009

Illinois AG: Special Election for Senate Seat Constitutional

Illinois AG Lisa Madigan issued an opinion yesterday concluding that there's nothing in the U.S. Constitution or the Illinois Constitution to prohibit the Illinois legislature from calling a special election to "fill" the U.S. Senate seat vacated by President Barack Obama and now occupied by Roland Burris.  Thanks to my colleague and friend Walt Kendall for the tip. 

Recall that Burris was appointed by embattled (and now impeached and removed) Governor Rod Blagojevich.  The initial appointment was controversial because of Blagojevich's then tenuous status as Governor and his shenanigans in filling the vacancy.  I posted on this here, here, here, and here, arguing that the Senate lacked power to block a valid appointment under the 17th Amendment and Illinois law, 10 ILCS 5/25-8, whatever we might think about Blagojevich, Burris, or the whole stinking process.

Now in the wake of revelations of Burris's, er, complementary statements about his ties with Blagojevich prior to his appointment, folks here in Illinois are looking for other ways to remove him, particularly a special election to "fill" the "vacancy."

AG Madigan opined that nothing in the U.S. Constitution or the Illinois Constitution prohibits that.  She concludes that if anything the 17th Amendment prefers it.

The 17th Amendment reads:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The Illinois legislature so empowered the Governor in 10 ILCS 5/25-8, the statute that Blagojevich used to appoint Burris:

When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress.

Madigan argues that the last clause of the 17th Amendment--"until the people fill the vacancies by election as the legislature may direct"--allows the legislature to rewrite 10 ILCS 5/25-8 to call for a special election for the seat temporarily occupied by Burris.  This all seems to make good sense.

Except that there isn't a vacancy. 

The 17th Amendment doesn't even come into play unless there's a vacancy, and here there is none:  Burris is the validly appointed U.S. Senator from Illinois.  (Madigan even refers to him as "Senator Burris" in her opinion.)  Nothing in his "temporary" appointment takes away from the fact that he currently fills the seat.  The 17th Amendment has no more relevance to Senator Burris's seat than to Senator Durbin's seat.

Madigan seems to assume that Burris's "temporary" appointment means that the seat is still vacant, or at least somehow more vulnerable for purposes of the 17th Amendment and Illinois law.  But this position is wholly belied by the plain language of the 17th Amendment and Illinois law, 10 ILCS 5/25-8, which together mean that any "temporary" appointee is for all purposes a U.S. Senator.  At the very least, those authorities mean that any "temporary" appointment fills the vacancy (at least temporarily!).

Sure the Illinois legislature could have--even should have--amended 10 ILCS 5/25-8 to provide for a special election when the seat was still vacant.  Everything in Illinois politics at the time suggested that that was the prudent move: This simple change could have avoided the whole Blagojevich appointment mess.  But the legislature didn't do that.  And Blagojevich appointed Burris--legally, validly--under the 17th Amendment and Illinois law.  The seat is now filled; there is no vacancy; and the 17th Amendment doesn't come into play.  It certainly doesn't permit a special election.

SDS

http://lawprofessors.typepad.com/conlaw/2009/02/illinois-ag-spe.html

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