Can the Illinois Legislature Change the Date of the Special Election to Replace Senator Burris?

As noted in the previous post, Lisa Madigan, the Attorney General of Illinois, issued this opinion dated February 25, 2009 regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris.  She concludes that “[i]t is well within the Legislature’s power to consider and enact changes to the current law to specify an earlier date for the election.”  

While this conclusion may or may not be correct, the opinion fails to support the conclusion and, in fact, largely ignores the real issue here.  At the time that then-Governor Blagojevich appointed Burris, Illinois law authorized the Governor to make a temporary appointment to fill a vacant Senate seat until the time of the next general election (ie, in November 2010), at which time a special election will be held to finish out the term (ie, the remaining two months).  The Illinois legislature is now considering moving up the time of the special election.   

            The Seventeenth Amendment provides 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 question is whether the legislature must direct the time, place and manner of the election at the time it empowers the executive to make temporary appointments. 

            Under one reading, the legislature may direct the conduct of the special election at any time.  Thus, for example, the legislature could empower the executive to make temporary appointments and leave open the time for the special election, which the legislature would establish after the appointment on a case-by-case basis. 

            This reading, though, runs into some problems.  Black’s Law Dictionary defines “temporary” as “that which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration.”  If the executive makes an appointment without a specified date for a special election (or one where the specified date is subject to change), the appointment is arguably indefinite, rather than temporary.  Put another way, the power which the Seventeenth Amendment authorizes the legislature to delegate arguably requires the appointment be made with a definite time limit (as opposed to a time limit which can subsequently be shortened or lengthened). 

            Another problem with this reading of the Seventeenth Amendment is that it gives the state legislature the power to punish or reward a Senator based on performance in office.   If an appointed Senator votes in a way that displeases the legislature, it could move up the date of the special election.  Conversely, if the legislature approves of his or her votes, it could move back the special election.  It seems unlikely that the Seventeenth Amendment was intended to give the legislature such control. 

            Two other observations.  First, the historic practice of the states in carrying out the Seventeenth Amendment has some bearing here.  If there are examples of states changing the time of the special election after appointment, Madigan doesn’t cite them.  Second, the issue here is analogous to one that arose in the 2000 presidential election when it was argued that the Florida legislature could, under its Article II power to direct the manner in which presidential electors are appointed, change the law to take the election contest away from the courts and itself determine the correct slate of electors.   

            Rather than deal with the complexities of this issue, the Madigan opinion largely focuses on irrelevancies, such as whether Burris has a property interest in his Senate seat.  This may have a bearing on the question of whether or when Burris could challenge the legality of a special election, but it doesn’t have anything to do with the legality itself.  If Burris has no property interest in his Senate seat, neither does his colleague, Senator Durbin.  Clearly, however, the Illinois legislature could not constitutionally authorize a special election to replace Durbin before the end of his term.  

When Does Senator Burris’s Term End?

Lisa Madigan, the Attorney General of Illinois, has issued this opinion regarding the proposal to set a date for an earlier special election to fill the vacant Senate seat of Barack Obama, the seat currently filled on a temporary basis by Roland Burris.  (Hat tip to Rick Hasen’s Election Law Blog and this post on Law Dork). Madigan concludes that “[i]t is well within the Legislature’s power to consider and enact changes to the current law to specify an earlier date for the election.”  

In a later post I will discuss the substance of the issue, but first I would note this peculiar sentence in Madigan’s opinion (also discussed in the Law Dork post): “Under the current language of section 25-8, U.S. Senator Burris’s temporary appointment will conclude in January 2011 following an election in November 2010, the next election of representatives in Congress.” 

This seems quite wrong.  The Illinois statute (section 25-8) provides: “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.”  This law is clear that an election to fill the vacancy takes place at the next general election and that the Senator-elect then fills the vacancy as soon as the certificate issues.  Burris’s term would therefore end immediately after the November election. 

The fact that Obama’s original term will expire in January 2011 is of no moment.  The general election will choose both the person who will fill the remaining two months of the unexpired term and the person who will succeed to the Senate seat for a full term beginning on January 3, 2011.  This would hardly be the first time that a House or Senate vacancy has been filled in the same election as chose the successor for the next term.  At least some states have done this with a single ballot line that chooses both offices (which, I suppose, means that you have two elections on one line).  In one case in 1994 (involving JC Watts, I believe) the state law provided that the winner of the general election would be automatically appointed by the governor to fill the House vacancy, which raised some constitutional questions.  The House did seat the Member-elect to fill the vacancy, however. 

Even if Illinois attempted to extend Burris’s current term until January 2011, I am not sure that it would be valid.  Riddick’s Senate Procedure (p. 710) contains this entry:  “The action of the Governor of a State in certifying that the term of a person, chosen at a general election to fill the unexpired term, should begin on the following January 3, was challenged in 1939 as being beyond his power.  The contention was made that the Senate fixes the time at which the service of a Senator begins, and that the Governor had only the right to certify the fact of election.  In that year, the Senate also decided that the term of service and compensation of a Senator appointed by the Governor of a State to fill a vacancy ended on the day of the election of his successor by the people when the Senate was in sine die adjournment.”  

Thus, Burris’s term will end in November 2010, not in January 2011 as suggested by the Madigan opinion.