Article I, section 6, of the U.S. Constitution says, “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States…the Emolument whereof shall have been encreased during the such time.”

The salary of Secretary of State was increased while Secretary Clinton was a U.S. Senator. A foreign service officer, David Rodearmel, filed a lawsuit, claiming that because Clinton had been a Senator when the salary of the Secretary of State was increased, therefore she is not eligible to be Secretary of State. Rodearmel lost in the lower court and asked the U.S. Supreme Court to hear his case. The government’s response had been due on February 4, but the goverment asked the Court for three separate extensions of time in which to respond. The government’s response is finally filed. The brief says that Rodearmel doesn’t have standing, but that even if he did, the provision is ambiguous. The government says that because Congress lowered the salary of Secretary of State just as Clinton was sworn in, there is no constitutional barrier to her being Secretary of State. Thanks to Bill Van Allen for the link.

A “primary screen-out” is a law that says voters who voted in a partisan primary may not then sign an independent candidate’s petition. There are no such restrictions left in any state, except Texas; and also Nebraska has a primary screen-out, but only for independent presidential candidates.

Ten states once had primary screenouts, but they have mostly been repealed. Oregon repealed its primary screenout in 2009.

Illinois repealed its primary screenout in 1975. Before 1975, the Illinois election law said, “Any person who has already voted at a primary election held to nominate a candidate or candidates for any office or offices, to be voted upon at any certain election, shall not be qualified to sign a petition of nomination for a candidate or candidates for the same office or offices, to be voted upon at the same certain election.”

Illinois repealed the primary screenout because it was simultaneously moving the independent candidate deadline to a far earlier date. The 1975 change said independent candidates had to file their petitions on the same day that candidates running in partisan primaries had to file. Obviously, it made no sense for Illinois law to say that people who voted in the primary could not then sign for an independent, if the independent petition only circulated well in advance of the primary. The 1975 bill did say that anyone who had signed an independent candidate petition could not then vote in a party primary. However, that was never enforced, because no one would know at a polling place if a particular voter might have signed for an independent candidate.

In 2006, the 7th circuit struck down the early petition deadline for independent candidates, in Lee v Keith. The 2007 session of the legislature then passed HB 632, which moved the deadline from December of the year before the election, to June of an election year, a much better deadline. The Illinois primary is held in March. HB 632 also repealed section 5/7-43, the provision that people who signed independent candidates could not vote in the primary.

Now, in 2010, Illinois Democrats claim that Illinois election law still has an implicit primary screen-out. See this story, which says that Democrats plan to challenge the petitions of several independent candidates and will claim that anyone who voted in the primary cannot validly sign an independent candidate petition. This decision by Illinois Democrats is extraordinarily illogical. There simply is no primary screen-out anywhere in the Illinois election code. Illinois Democrats seem to feel that just because they wish the law had a primary screenout, therefore it must somehow be there.