The legal controversy over the appointment of a replacement to the Senate seat previously held by President Barack Obama is likely drawing to a close.  In the process of resolving the controversy, the U.S. Supreme Court also clarified their interpretation of a key portion of the Seventeenth Amendment regarding vacancies in Senate seats.  This topic has been relevant lately, particularly following the 2008 election cycle.  When Senator Obama was elected President, his incoming administration including numerous sitting Senators including Vice President Joe Biden, Secretary of State Hillary Clinton, Secretary of the Interior Ken Salazar, and, of course, himself.  Despite its seemingly straight-forward language, the Seventeenth Amendment required a certain amount of parsing to ensure these senatorial appointments would fulfill its procedural requirements.

The Seventeenth Amendment, ratified in 1913, in addition to providing for the direct election of senators, altered the procedure for filling vacancies in that office.  The amendment provides that, in the event of a vacancy, the governor must issue a “writ of election” to hold an election for a permanent replacement to fill the seat.  The state legislature may empower the governor to make a temporary appointment, but the appointee may only serve until the special election is held to fill the vacancy.  A date for a special election must be set by the governor, but the amendment does not specify when exactly it must be held.

When President-elect Obama resigned his senatorial office on November 4, 2008 with two years and 48 days remaining in his term, Illinois Governor Rob Blagojevich subsequently appointed Roland Burris to fill the vacancy.  A certificate of appointment signed by the governor, which was held valid by the Illinois Supreme Court, stated that the appointment was to last “until the vacancy…is filled by election as provided by law.”  Illinois voters subsequently challenged the Illinois Election Code that governs appointments, which provides:

When a vacancy shall occur in the Office of U.S. Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

Under that provision, the special election to fill the office currently held by Roland Burris was set for November 2, 2010.  Plaintiffs argued that the provision required the temporary appointee to serve for an unreasonably long period of time and said nothing of the duty of the governor to issue a writ of election thus violating the Seventeenth Amendment.  Plaintiffs sought a preliminary injunction to compel the governor to issue a writ of election setting a date for a special election to fill the office.  Faced with this challenge, the courts had to address the question of how long is too long.

The Seventh Circuit concluded that the only precedents available with regard to the question of how much time can elapse between the start of a vacancy and the special election to fill that vacancy did not provide them with firm guidance.  The Supreme Court in Valenti v. Rockefeller summarily affirmed a lower court’s decision that a 29-month gap between vacancy and special election following the assassination of Senator Robert F. Kennedy did not offend the Seventeenth Amendment.  Based on this precedent, the Court reasoned that the duration of Burris’ temporary appointment had not yet exceeded the limits allowed by the Seventeenth Amendment.

The Seventh Circuit then asked the simpler question of whether the Seventeenth Amendment required the governor to issue a writ of election calling an election fill the vacancy in the Senate at all and found that plaintiffs had showed their challenge had a strong likelihood of success.  The governor had to issue a writ of election, but he could set it for November 2, 2010, the date provided for by the Illinois Election Code.  And, this is exactly what resulted.  Illinois voters would, in effect, be electing on that day both a replacement to fill the vacancy and a senator to the next Congress in separate elections.  The replacement senator would take office immediately and serve the remainder of the current term from November 2, 2010 to January 3, 2011.

However, the legal controversy was not over yet.  The Court then remanded to the district court to determine whose names should be on the November 2 ballot for the special election.  The U.S. District Court subsequently determined that only the candidates running for the full Senate term starting January 3 could run in the special election, which prevents Senator Burris from being placed on the ballot to finish the term.

Senator Burris challenged this decision.  He argued in his application submitted to the U.S. Supreme Court that, under the Seventeenth Amendment, the Illinois General Assembly, rather than the federal courts, must determine which candidates are eligible to run in the special election.  He based this argument on the language of the Seventeenth Amendment, which mandates that a special election be held “as the legislature may direct.”  As relief, Senator Burris sought to prevent the special election from taking place altogether.

In opposition, current Governor Pat Quinn submitted a memorandum to the Court arguing that the state had gone to great lengths to comply with the original order of the Seventh Circuit and that granting Burris’ application would “impose enormous burden” on the state in administering the election thus jeopardizing the integrity of the electoral process.  Plaintiffs also submitted a memorandum in opposition arguing among other points that Senator Burris waited too long to bring the action.

The Supreme Court declined to intervene, all but ending Senator Burris’ hopes of finishing the term.  A new senator will be elected from Illinois this November 2.  Likely, the candidate elected to finish the term formerly held by President Obama will be the same elected to take office in the 112th Congress.  In effect, the next senator from Illinois will most likely simply take office before the rest of his newly-elected colleagues and possibly have more seniority in office location over them.  Moreover, this controversy left unresolved the question of how long is too long between the start of a vacancy and an election to fill that vacancy.  However, this case will provide a little more guidance as to what is permissible under the Seventeenth Amendment.  In order to compel the Court to find the limits of what is permissible, a controversy must first arise with regard to a senate seat vacated much earlier during a term, and state law must allow the temporary appointment to serve well more than two years.

Harrison Crumrine is a third-year student at William & Mary Law School.


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