Sen. Roland Burris to go two months early? Hope so.

There's good news for Illinois: we might be able to retire Sen.
Roland Burris
, D-Ill., two months earlier than expected.

That doesn't sound like much, but more important than removing Burris --
former Gov.
Rod Blagojevich
's controversial appointee to Barack
old Senate seat--is confirmation of an important principle:
It is the voters' business who replaces Obama and not some political


Tribune photo by Zbigniew Bzdak / February 3, 2009

Illinois Gov. Pat Quinn at a press conference with Sen. Dick Durbin, Sen. Roland Burris and other members of the Democratic team that helped dump Burris on us.

For this boon, we can thank a federal appellate court that last week
ruled that the people of Illinois have a right under the 17th Amendment
of the Constitution to pick their own senator
The ruling makes possible--but does not ensure--that Illinois voters could
on Nov. 2 -- the same day as the general election--chose someone that
would immediately serve out the rest of the term in this, the 111th,
Congress. And straightaway send Burris packing. In a second election on
that same day, voters would elect someone to serve the full six-year
term beginning next Jan. 3 in the new, 112th Congress.

That might sound a bit unusual and complicated, but the important point
would be made: The appellate court ruling said it clearly:

"First, every time that a vacancy happens in the state's senate
delegation, the state must hold an election in which the people elect a permanent
replacement to fill the vacant seat. Second, the executive officer
of the state must issue a writ of election that includes a date
for such an election to take place. Whether the vacancy is first filled
by a temporary a matter left up to the state and is
governed by state law. The temporary appointment ends when the people
fill the vacancy in an election." [Emphasis added.]

Thus, when Quinn, House
Speaker Michael Madigan
and other Democrats
who run this state decided that they couldn't risk that a Republican
might win a special election, they cheated us out of exercising a
fundamental right. As the court also said: "A voting rights claim
strikes at the heart of the political process. Where a plaintiff's
voting rights are curtailed, the injury is sufficiently concrete to
count as an 'injury in fact.'"

But then, the court's decision gets a bit murky. Following the law, as
the court must, it decided that in this particular case, it was not its
job to order the election. For certain legal reasons, that decision will
be up to U.S. District Court Judge John F. Grady, who originally heard
the case. A status call on the case is scheduled for Wednesday. In
effect, the court suggested, but did not order, that Grady set the
special election for Nov. 2. (That's because the Democratic-controlled
Legislature said a special election--if Quinn ordered one--could only be
on Nov. 2, the date of the general election.)

Are you confused enough yet? If so, you're supposed to be.Here was the
legal hang-up: The plaintiffs in the case, Judge v. Quinn, claimed that
if Quinn did not call a special election they would "suffer irreparable
harm." The appellate court declined to order Quinn to do so because, it
said, the plaintiffs failed to show what "irreparable harm" they would
suffer. The burden rested with the plaintiffs, and one might say that
they blew it by failing to offer a convincing argument.

That is a pity. I'm not a lawyer and I probably wouldn't do any better
in making a convincing argument for "irreparable harm." One might argue
that the nation suffered irreparable harm by Burris' appointment because
it helped provide Senate Democrats a filibuster-proof majority to pass
the gawd-awful health care legislation and various other monstrosities.
But the appellate court might respond that the harm is reparable because
the next Congress could void it all. We can only hope.

To me, the failure to hold a special election caused a significant
wounding of the democratic process, and I'd call that irreparable harm.
Solely for political expediency--keeping one more vote in the Senate on
their side--Illinois Democrats clearly stripped us of a constitutional
right, just as surely as if they had denied us of free speech. Illinois
voters should remember that on Nov. 2, whether or not they have one or
two Senate elections on that day.

This column also appeared in the Chicago Tribune.


Leave a comment
  • Leave a comment...

  • It posts leave a comment, but won't let me leave one. Bleep it.

  • One more try then I'm outta here....

    Irreparable harm means that any other remedy is not sufficient to protect the plaintiff's rights, and is necessary before injunctive relief may be granted. Apparently, the plaintiff had not previously so demonstrated, and even if he had, that would be subject to the various "stay equities", as Judge Posner puts it, including weighing cost to the defendant.

    However, this opinion seems a straightforward construction of the proviso in the 17th Amendment:

    "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 Illinois legislature has so directed in the Election Code:
    "(10 ILCS 5/25-8)
    Sec. 25-8. When a vacancy shall occur in the office of United States 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.
    (Source: Laws 1943, vol. 2, p. 1.)"

    Hence the only issue, and proper conclusion, is that the date of the certificate of election, and hence when the new Senator takes office, is apparently some time before Jan. 3, 2011.

    However, since all of this deals with construction of the Constitution, which authorizes the Illinois Election Code provision, it certainly cannot be said that a constitutional right is being violated.

  • In reply to jack:

    The Legislature has removed that option, according to the 40-page opinion. If Quinn issues a writ of election, it can only be for Nov. 2, the date of the general election. What do you think that Madigan et al had in mind with that?

  • In reply to DennisByrne1:

    The legislature removed WHAT OPTION?

    I quoted the existing law earlier. It says "until the next election of representatives in Congress, at which time such vacancy shall be filled by election." The next congressional election is Nov. 2, I presume.

    Apparently, you were correct in admitting that you are not a lawyer, as you got over your skis on this one.

    However, I am surprised that Tribune software eventually posted my comment, after about 5 tries.

Leave a comment

  • Advertisement:
  • Advertisement:
  • ChicagoNow is full of win

    Welcome to ChicagoNow.

    Meet our bloggers,
    post comments, or
    pitch your blog idea.

  • Visit my new website

    I'm a freelance writer, editor and author. I can help you with a wide variety of projects. Check out my new website at

  • Subscribe to The Barbershop

    Enter your email address:

    Delivered by FeedBurner

  • Dennis Byrne’s Facebook Fan Page

  • Like me on Facebook

  • Our National Debt

  • Twitter

  • Tags

  • Recent Comments

  • /Users/dennisby/Desktop/trailer.mp4
  • Advertisement: