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Illinois’s Unconstitutional Procedure for Filling the Obama Vacancy

An interesting Seventh Circuit opinion earlier this month considers the constitutionality of Illinois’s procedure for filling the Senate seat vacated by Barack Obama after his presidential election.  (hat tip, Election Law Blog).  Among other things, the court confirms my view that the term of Senator Burris (who was appointed by then-Governor Blagojevich as a temporary replacement pursuant to the Seventeenth Amendment) must end at the next general election in November 2010, not in January 2011 as claimed by Illinois Attorney General Lisa Madigan.

More importantly, the court indicates that Illinois is violating both the Constitution and state law by failing to schedule a special election to fill the Obama vacancy. Judge Wood’s opinion carefully examines the text, purpose and legislative history of the Seventeenth Amendment, as well as its relationship to other constitutional provisions, such as the House Vacancies Clause and the Elections Clause.

The relevant language of the Seventeenth Amendment provides: 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.”

Analyzing this provision, the court concludes:

1.      The first part of the provision (the language preceding “Provided”) establishes a mandatory duty on the part of the state executive to issue a writ of election when a Senate seat becomes vacant.

2.      The second part of the provision (the language following “Provided”) is an elaboration of, not a freestanding alternative to, the first part.  Thus, the executive is required to issue a writ of election whether or not he appoints a temporary replacement.

3.      The phrase “as the legislature may direct” modifies the immediately preceding term “election.”  This phrase merely affirms that the Seventeenth Amendment was not intended to change the Elections Clause of the original Constitution, which provides that state legislatures shall prescribe the times, places and manner of holding congressional elections.

4.      Although the writ of election must contain the date of the election to fill the vacancy, “the state legislature may pass laws that establish a range of dates from which the state executive may choose, and might even limit that set to a single day.”

Illinois law clearly provides that a Senate vacancy must be filled by a special election on the date of the next general congressional election.  However, neither Governor Blagojevich nor his successor issued a writ of election with respect to the Obama vacancy.  Moreover, according to the evidence submitted to the Seventh Circuit, Illinois appears to have taken no steps to provide for a special election to fill the Obama vacancy.  To the contrary, the court notes that Attorney General Madigan has taken the position that Senator Burris’s term will end at the expiration of this Congress in January 2011, thus confirming that Illinois does not intend to hold a special election to fill the vacancy.

Judge Woods finds a strong likelihood that the plaintiffs will prevail on the merits of their claims that Illinois has violated the Seventeenth Amendment by failing (a) to issue a writ of election and (b) to provide for any special election to fill the Obama vacancy prior to the expiration of this Congress (at which point Obama’s original term will expire of its own accord).  Indeed, it is not clear whether Illinois has even offered a legal justification or explanation for its actions (or inactions) with regard to the Obama vacancy.

The case is now be remanded to the district court for consideration of how Illinois can arrange for a special election at this late date. One final note—the Seventh Circuit did not reach the question of whether Illinois’s law itself violates the Seventeenth Amendment by providing for an unreasonably long period (up to two years or so) for a “temporary” Senate appointment to last.  While the court does not directly address this issue, my sense is that it at least considered this a serious question, which would have potential implications not only for Illinois, but for other states which have similar provisions for filling Senate vacancies.

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