Illinois Mon Jan 12 2009

Time to Let Go of "Special Election" Dreams

By Jeff Smith

Even after the Friday ruling by the Illinois Supreme Court made it pretty apparent that Roland Burris would be seated in the U.S. Senate, I continued to hear over the weekend scenarios by which various aspirants to fill Barack Obama's vacancy could still get there by way of a special election. The Chicago Tribune has been clamoring for one, putting the onus on, variously, presumptive governor-to-be Pat Quinn or Sen. Dick Durbin to somehow accomplish that.

Couple problems there.

First, as the Illinois Supreme Court ruled, the appointment was valid. So, since the appointment, there has not been a "vacancy." The U.S. Senate, had they refused to seat Burris, would not have created a new vacancy, only a mess. A "vacancy" would only have occurred if, following some extended standoff, Burris had withdrawn his name. That was unlikely to happen; more likely, he would have appealed to the U.S. Supreme Court, who would have spanked the Democratic-controlled Senate. Not the best way to start a Congress of "change."

Without a vacancy, how can there be a special election? I talked with one Democratic sage this weekend who theorized that the seventeenth amendment to the federal Constitution permits an election even after an appointment. Indeed, that amendment provides that "the legislature of any State may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct." U.S. Const., amend. XVII (emphasis added).

However, the Illinois legislature has already "directed" by law how long a gubernatorial appointment lasts: until the next general election. The Illinois Election Code says very clearly that "[w]hen 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." 10 ILCS 5/25-8. Note the language "next election of representatives." Plural. That means not a special election for one seat, but, obviously, the next general election.

The idea that a legislature can grant the power to appoint to a governor, and then, if they don't like a pick, pass a new law to somehow terminate an appointment already made, and hold a special election, is at odds with basic principles of legislation. If that had been the law prior to Blagjevich's pick, maybe. But now? No way.

First the impracticalities. A special election for the Obama-Burris seat would require a new law. That assumes that both houses of the General Assembly, where all sorts of folks have political stakes in the outcome, could agree on a bill, and that whoever is in the governor's seat (probably Blagojevich, at least for the next month) would sign it, or that a veto would be overridden. Or that a Gov. Quinn would sign it, say sometime in March -- meaning that we would not have a special election until sometime in, oh, late May or June.

Leaving aside the question as to whether it could even be accomplished politically, or why it would be a good thing to have a U.S. Senator installed in June, who then has to start circulating petitions for the February primary in August, there are serious obstacles to now changing the law. One is that there is no longer a vacancy, so to what would the special election apply? Article I, Sec. 16 of the Illinois constitution prohibits the passage of ex post facto laws, so the General Assembly cannot remove Roland Burris by fiat. Trying to close the gate after the horse is out has been a problem all along with these special election scenarios. Some have speculated on the U.S. Senate expelling Burris, but that body doing so for purely political reasons, as opposed to some malfeasance by Burris, seems like overimagination.

Barring some unforeseen bizarre event -- and these days, those can never be ruled out -- Burris is U.S. Senator and will remain so until at least January 2011. Those who wish to replace him can try to do so by running in the next election cycle, which will be upon us before you know it, and which normally would have unofficially already started, but for all the uncertainties created in Illinois. That also means that the entire second tier of aspirants waiting for special elections of their own -- in the congressional districts of Jan Schakowsky, Danny Davis, Jesse Jackson, Mark Kirk, or Peter Roskam, each of whom might have been appointed or elected -- can also relax, for now.

For the time being, those dissatisfied with the selection of Burris can try to improve on the pick in the time-honored way -- by pushing him to be a batter elected official. Those who believe someone else would make a better Senator can run in 2010, or work for their favorite candidate. Nothing is stopping them -- Burris will not have the typical presumptions of incumbency. And those who believe that it's undemocratic to let a governor to make these appointments should push for a bill eliminating that power, not after the fact, but -- as law should be -- with respect to the future.