Atlantic Monthly has this commentary by a legal scholar, Garrett Epps, on why the 7th circuit decision Judge v Quinn is right to say that the U.S. Constitution requires a special election for Barack Obama’s old U.S. Senate seat on November 2, 2010.
As the column says, procedural problems with the lawsuit prevented the 7th circuit from ordering a special election; it is necessary for the U.S. District Court to take that action. For some reason the Epps column refers to the case as Judge v Backer, but the correct name of the case is Judge v Quinn. The decision came out on June 26, 2010.
The state of Illinois has never argued that there wouldn’t be an election on November 2, 2010, as provided by Illinois statute.
The plaintiffs, who filed their lawsuit in early 2009, had argued that the 17th Amendment requires a governor to as soon as practicable issued writs of election, and had framed their political arguments in much the same manner as Garrett Epps – Blago bad, Burris bad, corruption bad, election by legislature bad, election by people good.
Mr. Epps appears to be indifferent to the identical situations in New York, Delaware, and Colorado.
In addition, the plaintiffs claimed that the Illinois statute that provides for a special election at the next congressional election is unconstitutional because it permits an appointee to serve for longer than a “temporary” period; or alternatively that it was unconstitutional because it removed all discretion for the governor to issue a writ of election.
The federal district court refused to issue a preliminary injunction ordering an election, and the 7th Circuit affirmed that was the correct thing to do.
An Illinois Attorney General’s opinion that the legislature did have the authority to set an earlier special election date (even after Burris had been appointed), seems to interpret the current statute as saying that the regular election for the 2013-2019 term would be used, and Burris’s appointment would last until January 3, 2011.
Here is the statute:
“Sec. 25?8. 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.”
I think the straightforward reading is that it is the vacancy in the 2005-2011 term that is being filled by (special) election, and that the senator-elect should take office as soon as the votes are canvassed.
Besides being a constitutional legal scholar, Epps also teaches courses in creative writing to law students. So that is why it appears that this was a great victory for the plaintiffs.
The decision also noted that the time, place, manner authority under Article I, Section 4 applies to senate elections – which means that the Congress has the authority to override the time of special elections for senators. There is no need for a constitutional amendment, just a law.