Wednesday, September 23, 2009

Senate Vacancies and the 17th Amendment

A group of Illinois voters last week argued their case to the Seventh Circuit that Illinois law providing for the appointment by the governor of a person to fill a vacant U.S. Senate seat runs afoul of the Seventeenth Amendment.  The oral argument, about 33 minutes, is here.

The case arose in response to former Governor Blagojevich's appointment of Roland Burris to fill out Barack Obama's Senate term.  (I posted on this at the time here, here, here, and here.)  Blagojevich appointed Burris pursuant to Illinois law, which states:

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, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

10 ILCS Sec. 5/25-8.  Governor Quinn, Blagojevich's replacement, made no attempt to revoke or alter the appointment, and he didn't call for a special election.  Indeed, under the plain language of 5/25-8, the next election would be in November 2010--the "next election of representatives in Congress," and, coincidentally, the date on which Obama would have faced re-election (because his term ended in 2011).

Plaintiffs in Judge v. Quinn argued that Illinois law violated the Seventeenth Amendment, which states:

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.

U.S. Const. Amend. XVII.  The plaintiffs argued that Illinois law failed to provide for a special election to fill the rest of Obama's term.  The regular election next November doesn't qualify, they argued, because that election is the regular election for the Senate seat.  (Curiously, they argued that a special election on election day 2010, right along with the regular election, would satisfy their demands.  Illinois used a similar special election in the primaries to replace former House Speaker Dennis Hastert when he resigned.  But it's not clear what plaintiffs would gain from this process.)  Plaintiffs argued that their position is most consistent with the spirit of the Seventeenth Amendment, which, they say, is that the people should elect their (regular) Senator, even if the legislature may authorize the governor to appointment a (temporary) Senator. 

Judge Grady (N.D. Ill.) rejected the claim and ruled on the plain language and earlier interpretations of the Amendment that Illinois's procedure "does not violate plaintiffs' right under the Seventeenth Amendment to vote in the direct election of their Senator."  (Grady examined Valenti v. Rockefeller, the case dealing with New York's procedure for filling the vacancy created by Senator Robert Kennedy's assassination.  A three-judge panel upheld New York's procedure--which was similar to the Illinois law--and the Supreme Court summarily affirmed, without an opinion.  Grady held that Valenti and cases interpreting it "squarely contradict plaintiffs' textual interpretation, pursuant to which they argue that Illinois cannot "forgo a special election in favor of a temporary appointment." (citations omitted, emphasis in original).)

Massachusetts handled things differently.  That state set a special election for January 19 (with primaries on December 8) to replace Senator Kennedy.  The Massachusetts legislature just today passed legislation providing for gubernatorial appointment of a Senator until that time.  (The Massachusetts House passed a resolution conveying its sense that the appointee should not run in the January 19 election.)

Is the Massachusetts procedure, providing for a true special election by the people, more consistent with the text and purpose of the first clause of the Seventeenth Amendment?  Perhaps.  But this isn't to say that Illinois's procedure violates the Seventeenth Amendment.  On the contrary, Illinois is well within the plain text and scant judicial interpretations of the second clause of the Seventeenth Amendment.  The Judge plaintiffs' concession that even a special election on election day 2010 (right along with the regular election), and two years after the vacancy, illustrates their extreme position based on a strained reading of the text.


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There was a recent editorial in Roll Call about this:

Posted by: Wilson Moore | Oct 12, 2009 7:06:06 AM

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