As you may have heard, Representative Jesse Jackson, Jr. submitted a letter of resignation to the Speaker the day before Thanksgiving. The Hill explains: “Jackson has been absent from Congress since June, while receiving inpatient treatment for bipolar disorder. He returned to Washington in September but then checked back into the Mayo Clinic in Minnesota. In November Jackson checked out of the Mayo Clinic again and continued to receive treatment elsewhere.”
Jackson won a contested primary against former Representative Debbie Halvorson in March 2012, and he easily won the general election on November 6, 1012. Thus, in addition to being a Member of the House in the 112th Congress, Jackson was a Member-elect of the 113th Congress.
The relevant part of Jackson’s November 21, 2012 letter reads:
For seventeen years I have given 100 percent of my time, energy, and life to public service. However, over the past several months, as my health has deteriorated, my ability to serve the constituents of my district has continued to diminish. Against the recommendations of my doctors, I had hoped and tried to return to Washington and continue working on the issues that matter most to the people of the Second District. I know now that will not be possible.
The constituents of the Second District deserve a full-time legislator in Washington, something I cannot be for the foreseeable future. My health issues and treatment regimen have become incompatible with service in the House of Representatives. Therefore, it is with great regret that I hereby resign as a member of the United States House of Representatives, effective today, in order to focus on restoring my health.
(emphasis added).
There are a couple of noteworthy things about this letter. First, Representative Jackson clearly and expressly resigns his seat in the current Congress (the 112th). Because it will be impossible to fill the vacancy before the Congress expires, the major practical effect of this resignation is to deprive his constituents of a vote in the House during the lame-duck session. To be sure, it will also save taxpayers the cost of Jackson’s congressional salary for about 6 weeks, but Jackson could have saved taxpayers an equivalent amount of money without resigning. Having retained his seat for many months while absent from his congressional duties, it is unclear why Jackson would choose to resign now.
Second, although his letter implies that he will not be taking the seat to which he was elected in the 113th Congress, Jackson does not explicitly state his intention in this regard. This strikes me as an odd omission. House precedent shows that a Member-elect may resign before taking office and that the chief executive of the state may treat the resignation as creating an immediate vacancy. II Hinds Precedents § 1230 et seq. The timing of the vacancy appears to be a question of state law. For example, when in November 1998 then-Speaker Gingrich informed the Governor of Georgia that he would “not take the seat of congressman for the Sixth District of Georgia for the 106th Congress,” the Governor did not attempt to call a special election until after the 106th Congress convened in January 1999. House Rules & Manual § 20.
Here Jackson has not explicitly declined his seat in the 113th Congress. Such intent may be inferred from his letter (assuming that January 2013 falls within the “foreseeable future”), but it is doubtful that this constitutes an effective resignation for purposes of creating an immediate vacancy. Illinois Election Code 25-2 provides: “An unconditional resignation, effective at a future date, may not be withdrawn after it is received by the officer authorized to fill the vacancy. Such resignation shall create a vacancy in office for the purpose of determining the time period which would require an election.” One would think that for Jackson’s letter to be effective as an “unconditional resignation” of his seat in the 113th Congress, it would have at least to expressly state that it was a resignation of that seat.
Illinois officials are apparently under the impression that they are required to treat Jackson’s letter as creating a vacancy for the 113th Congress, and they are scrambling to seek a judicial waiver of the time periods provided by Illinois law. It seems to me, however, that this may be unnecessary because no vacancy has yet arisen under Illinois law. But Illinois may want to instruct its congressional delegation on how to resign.