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Court: Constitution Requires Election of Replacement Senators

 
 
Reply Thu 17 Jun, 2010 08:18 am
In a case decided yesterday by the Seventh Circuit Court of Appeals in Chicago, the court held that the Seventeenth Amendment requires an election to fill the vacant senate seat left by Barack Obama. In an opinion written by Diane Wood (who has been considered by Obama for the supreme court), the court concluded: "As the case now stands, the plaintiffs take the position that the Seventeenth Amendment requires Governor Quinn to issue a writ of election calling an election to fill President Obama’s vacancy in the Senate, and the state is arguing that he is under no such obligation. Our analysis of the Seventeenth Amendment convinces us that the plaintiffs have shown a strong likelihood of success on the merits. The governor has a duty to issue a writ of election to fill the Obama vacancy."

I haven't had time to look at the opinion at length. You can find it here (.pdf).
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joefromchicago
 
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Reply Thu 17 Jun, 2010 11:54 am
I've had a chance to read the opinion (the link in the original post is apparently dead -- you can find the opinion here instead). A few observations:

For those few people who might not have committed the text of the seventeenth amendment to memory, here is the relevant section:

The authors of the seventeenth amendment wrote:
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.

The court analogized the governor's duty to issue writs of election in the case of senatorial vacancies to the governor's duty to issue writs of election in the case of congressional vacancies, which is found in Art. I, sec. 2 of the constitution, and which simply states: "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." That clause has been interpreted as mandating elections to fill a congressional vacancies. The only difference is that the seventeenth amendment permits governors to make temporary appointments to fill senatorial vacancies. The question, then, is whether "temporary" means filling the seat until the next regularly scheduled congressional election (as has been the traditional interpretation) or filling the seat only until a special election can be held (which is what the petitioners in this case argued).

The court, analyzing the congressional debates over the seventeenth amendment, concluded that the drafters envisioned a situation closer to the way vacant congressional seats were filled, i.e. the governor would announce an election within a short period of time after the vacancy occurred. The governor could name a temporary replacement, but that replacement would only serve until the state could elect a replacement.

The court recognized that the governor's power to call an election could be limited by the legislature. In the case of Illinois, the court concluded that the legislature only allowed the governor to pick one day on which the election to fill the Obama vacancy could take place: Nov. 2, 2010, which just so happens to be the date on which the regular congressional election is scheduled to take place. The result, then, is that Illinois will have two senatorial elections on that date: one to fill the remainder of Obama's term (which expires on Jan. 3, 2011), and one for the regular, six-year term to begin on Jan. 3, 2011.

There is no indication yet that the state will ask the full circuit to review this decision or if it will appeal to the supreme court. The seventh circuit covers Illinois, Wisconsin, and Indiana, and this decision only applies to those states.
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roger
 
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Reply Thu 17 Jun, 2010 02:27 pm
For what it's worth, I agree with the court. Still, I wouldn't mind the decision being appealed just for the sake of broader application.
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joefromchicago
 
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Reply Thu 15 Jul, 2010 01:19 pm
I don't know why these links keep dying. Here's the latest link to the court's opinion in Judge v. Quinn.
parados
 
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Reply Thu 15 Jul, 2010 01:39 pm
@joefromchicago,
An interesting skim.

It appears the legislature can set the date or range of dates for any such election but the executive must issue a writ of election for it to be held.

So the legislature could mandate it to be held the next election cycle and it would meet the requirements as laid out by the court. The executive then only needs to issue a writ of election listing that date and all would be fine.

I'm curious what Illinois law is for filling a vacant US Senate seat. Don't have time to look it up right now if someone finds it before I do.
joefromchicago
 
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Reply Thu 15 Jul, 2010 01:47 pm
@parados,
parados wrote:
I'm curious what Illinois law is for filling a vacant US Senate seat. Don't have time to look it up right now if someone finds it before I do.

The governor appoints someone to fill out the senator's term until the next scheduled statewide election.
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parados
 
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Reply Thu 15 Jul, 2010 01:51 pm
@parados,
On further reading of the ruling, it appears the legislature did set the date as Nov 2, 2010 which is when the election is now scheduled to happen.

The only issues remaining is the governor has to issue a writ of election (even though the election is already scheduled for the only day for which he is able to issue that writ) and the question of whether the winner of such an election will take office immediately after the election or will wait until the normal Jan for newly elected Senators.

There just doesn't seem to be much to the ruling other than to tell the plaintiffs that they haven't shown how they will be harmed if an injunction is denied. The plaintiffs even dropped their argument demanding an earlier election.
joefromchicago
 
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Reply Fri 16 Jul, 2010 08:39 am
@parados,
parados wrote:

On further reading of the ruling, it appears the legislature did set the date as Nov 2, 2010 which is when the election is now scheduled to happen.

The only issues remaining is the governor has to issue a writ of election (even though the election is already scheduled for the only day for which he is able to issue that writ) and the question of whether the winner of such an election will take office immediately after the election or will wait until the normal Jan for newly elected Senators.

Because the legislature set only one date for the governor to issue writs of election -- the date of the general election in November -- there will be two senatorial elections on that date: the first to fill the unexpired term of Barack Obama, and the second for the new term starting on Jan. 3, 2011. The winner of the former election will take the seat immediately (or as soon as the state can certify the results of the election to the senate) and will serve until Jan. 3, 2011.

Now, although I haven't seen any official party announcements in the wake of this ruling, it's a certainty that the candidates who won their parties' nominations for the regular term will also be named as the candidates for Obama's unexpired term. So the same candidates will run in both elections, and, unless the voters are particularly perverse in their choices, the same candidate will win both elections. That actually gives an advantage to the winner, since seniority is based on when the senator first enters the senate. The winner, therefore, will have a two-month head start over the other members of the class of 2011.
parados
 
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Reply Fri 16 Jul, 2010 03:30 pm
@joefromchicago,
Quote:
Now, although I haven't seen any official party announcements in the wake of this ruling, it's a certainty that the candidates who won their parties' nominations for the regular term will also be named as the candidates for Obama's unexpired term. So the same candidates will run in both elections, and, unless the voters are particularly perverse in their choices, the same candidate will win both elections.

How will that work? Obviously someone can't occupy 2 Senate seats.
Does Ill allow people to run in 2 elections at the same time if they can't fill both spots?
joefromchicago
 
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Reply Fri 16 Jul, 2010 06:21 pm
@parados,
The spots are open consecutively, not concurrently. The remainder of Obama's term runs from Nov. 2, 2010 to Jan. 3, 2011. The new senatorial term goes from Jan. 3, 2011 to Jan. 3, 2017.
parados
 
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Reply Sat 17 Jul, 2010 07:08 am
@joefromchicago,

ah....

I had forgotten his term ended in Jan 2011.
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