On September 14, U.S. Supreme Court Justice Stephen Breyer asked for a response from the Appellees in Burris v Judge, 10A272.  This is the case in which U.S. Senator Roland Burris of Illinois argues that the lower federal courts overstepped their authority when they told Illinois whom to print on the November 2, 2010 ballot in the special U.S. Senate election.

The U.S. District Court Judge in this case had ordered that everyone who is on the ballot for the 6-year regular term should also be on the ballot for the special 2-month term, and no one else could run in the special election.

If the U.S. Supreme Court acts on the side of Senator Burris, one possible relief would be to simply cancel the special election.  Another possibility would be for Illinois to hold a special election with no names on the ballot, and depend on write-ins to elect someone to the 2-month term.  This is how California handled a similar election in November 1946.  A third possibility would be that state party committees be authorized to choose a party nominee in the special election, although that solution would still leave the problem of how independent candidates could qualify for the special election.  In 1986, when Michigan had no statutory procedure for independent candidates to get on the ballot, the Secretary of State simply placed any independent candidate on the ballot who requested to be on, which worked well.