Supreme Court steers clear of case involving Obama Senate seat
The Supreme Court left in place an appeals-court ruling that then-Gov. Rod Blagojevich's 2008 appointment of Roland Burris to the US Senate violated an often-overlooked clause in the 17th Amendment.
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Mr. Blagojevich has denied any wrongdoing. He testified recently that he was simply engaging in a political “horse trade.”Skip to next paragraph
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Blagojevich was impeached and removed from office in 2009.
The 17th Amendment
The legal dispute over the proper constitutional procedure to replace a senator involves a judicial determination of the requirements of the 17th Amendment.
The amendment, adopted in 1913, replaced part of Article I, Section 3 of the Constitution, which provided for the election of US senators by the state legislature.
The amendment establishes that senators will be elected by the people rather than the legislature. In the event of a vacancy, it directs the governor to “issue writs of election to fill such vacancies.”
A state legislature may authorize a governor to make temporary appointments but only “until the people fill the vacancies by election as the legislature may direct.”
The issue in the Illinois case was whether the state could temporarily fill the vacancy through an appointment, or whether the state must also conduct a special election to fill the temporary vacancy.
The fate of the Illinois Senate seat
After the 2008 election, Blagojevich appointed Mr. Burris to serve out the remaining two years of Obama’s Senate term. A short while later, Blagojevich was removed from office and replaced as governor by Pat Quinn.
Two Illinois voters filed a lawsuit challenging the Illinois statute that authorizes the governor to appoint a replacement senator. The two voters, Gerald Judge and David Kindler, said the state law violated the terms of the 17th Amendment – which they argued requires a special election to fill the vacant Senate seat.
The 17th Amendment says in part: “When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
A federal judge dismissed the suit, ruling that the 17th Amendment does not require a special election to the exclusion of a gubernatorial appointment.
On appeal, the Seventh Circuit reversed the lower court, ruling that the 17th Amendment requires a special election. The court decided that two elections for US senator were necessary, one to fill the remainder of Obama’s term and the other to fill the new six-year term.
Both elections were held on November 2, 2010. Congressman Mark Kirk (R) won both elections. He replaced Burris to serve out the remaining two months of Obama’s term, and is currently serving his own six-year term as the junior senator from Illinois.
Louisiana and 12 other states jointly filed a friend of the court brief urging the high court to take up the case. “When President Obama resigned his senate seat, Illinois planned to fill the vacancy via the regular November 2010 election for the new term. That route was consistent with its vacancy-election law, and with those of most states,” wrote S. Kyle Duncan, Louisiana appellate chief, in the states’ brief.
“But the Seventh Circuit rejected that practice and, in doing so, announced an unprecedented and misguided rule of constitutional law: that states must always stage a replacement election for the unexpired Senate term, no matter the timing of the vacancy,” the Louisiana brief said.
The cases are Burris v. Judge (10-367) and Quinn v. Judge (10-821).