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.

Stephen Haas / Decatur Herald & Review / AP
Roland Burris (D) of Illinois, shown in Decatur, Ill., in 2009, was appointed to the Senate by then-Gov. Rod Blagojevich, who was shortly thereafter impeached and removed from office. Senator Burris served for two years before the Seventh Circuit ruled that the Constitution's 17th Amendment requires a special election – not a governor's appointment – must fill any vacant Senate seat.

The US Supreme Court on Monday refused to enter a legal dispute over whether Illinois officials complied with the Constitution’s 17th Amendment when they filled the US Senate seat left vacant by President Obama.

In declining to take up appeals filed by Illinois Gov. Pat Quinn (D) and former Sen. Roland Burris (D), the high court let stand a federal appeals court’s decision that the senate-vacancy procedure in Illinois was unconstitutional.

Illinois law empowered the governor to appoint a replacement to serve the remainder of any vacant US Senate term. But a three-judge panel of the Seventh US Circuit Court of Appeals in Chicago ruled in June 2010 that Illinois’ procedure was unconstitutional under the 17th Amendment unless the state also held a special election.

Nineteen states have laws similar to the Illinois measure, relying exclusively on appointments rather than special elections to fill senate vacancies. And the decision could have a broader effect. According to one analysis, if applied nationally, the appeals court’s decision would cast constitutional doubt on the Senate-vacancy procedures currently used by 42 states.

A friend of the court brief, filed in the case by the Louisiana attorney general’s office, said the Seventh Circuit ruling would render unconstitutional the temporary, appointed terms of 34 senators – including Walter Mondale (D) of Minnesota in 1964, George Mitchell (D) of Maine in 1980, Lincoln Chafee (R) of Rhode Island in 1999, Lisa Murkowski (R) of Alaska in 2002, Robert Menendez (D) of New Jersey in 2006, Michael Bennet (D) of Colorado in 2009, and George LeMieux (R) of Florida in 2009.

Illinois scandal

Mr. Obama’s former US Senate seat has engendered an extraordinary level of controversy. In addition to the constitutional dispute over proper replacement procedures, it is also at the center of an ongoing corruption trial in federal court in Chicago.

Former Illinois Gov. Rod Blagojevich (D) is accused of attempting to trade his authority to fill the vacant Senate seat in exchange for a prestigious post in the Obama administration or a pledge of $1.5 million in campaign contributions.

Mr. Blagojevich has denied any wrongdoing. He testified recently that he was simply engaging in a political “horse trade.”

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).

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