Judge Holds Off on Decision Requiring Special Election

By Anthony Ponce and BJ Lutz
|  Wednesday, Jun 30, 2010  |  Updated 7:43 PM CDT
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Judge Holds Off on Decision Requiring Special Election

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There is a possibility that come Election Day in November, there may actually be two separate elections for the United States Senate seat currently held by Sen. Roland Burris.

But a federal judge on Wednesday said a decision won't come for at least three weeks.

At issue is a lawsuit filed more than a year ago that cites the United States Constitution in arguing that someone besides Burris needs to finish out the six-year term to which Barack Obama was elected.

Burris wasn't elected to his post. He was appointed there by former Gov. Rod Blagojevich in December, 2008.  And allowing him to serve more than two years without an election is a violation of the U.S. Constitution, plaintiffs claim. 

The 17th Amendment to the U.S. Constitution requires:

When vacancies happen in the representation of any State in the Senate, the executive authority of each 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.

Writing in The Atlantic, legal scholar Garrett Epps explains the plaintiff's argument in context:

The most direct way to read this is that when a vacancy occurs, the governor must schedule a special election, and may if allowed by state law appoint a temporary senator to serve until that election. The legislature may pass laws governing the timing of such an election; if they don't, the governor will schedule it by "writ of election" (an English writ calling a vote at a specific time and place). The amendment -- as I read it, at least -- doesn't give anyone the power to fill the vacancy by appointment for the rest of the term. That wouldn't be "temporary."

So plaintiffs are trying to have the special election they claim is mandated scheduled for the same day as the General Election: November 2, 2010. 

"We filed this case a year and a half ago," said attorney Martin Oberman. "We felt that an appointed senator should not serve for two years."

Oberman is fighting to allow voters to vote for two senators: once for either Alexi Giannoulias or Mark Kirk, and again for a candidate to fill out the remainder of Burris' (actually, President Obama's) term, which expires just 62 days later, on Jan. 3, 2011.

Given the time frame until Election Day and the state's budgetary issues, election officials are strongly opposed to the idea.

"You're probably looking at upwards of $30 million statewide for a low-turnout contest for someone to serve 30 days," said James Allen with the Chicago Election Board.

The District Court denied the plaintiffs' motion for an injunction ordering a special election. The Circuit Court tepidly upheld that decision, but suggested the District Court should order such an election.

"There is still time for the governor to issue a writ of election that will call for an election on the date established by Illinois law and that will make it clear to the voters that they are selecting a replacement for Senator Obama," Judge Diane Wood wrote earlier this month. "The district court can easily reach and resolve the merits of this request before any of the harm that the plaintiffs forecast comes to pass. Moreover, circumstances change: Governor Quinn might issue a writ of election tomorrow, or next week."

Plaintiffs argue that adding a second ballot could be done at no cost to taxpayers if the candidates are chosen by party leadership, but election officials say that's illegal according to Illinois election law.

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