(IL) AG: U.S. Constitution Prefers Special Election on Senate Vacancy

[struggle4progress]

Source: NBC Chicago

As the Illinois General Assembly considers bills to address the process for filling a vacancy in the U.S. Senate, Attorney General Lisa Madigan has received inquiries specifically asking whether the legislature can constitutionally pass a law that changes the date of the next election for the U.S. Senate.

She answered that Wednesday evening.

"It is my opinion that the legislature may pass a law allowing the people of Illinois to elect a U.S. senator to fill the seat vacated by President Barack Obama," Madigan said in a written statement. "Such a law would be consistent with the U.S. Constitution. The 17th Amendment expresses a clear preference for having the people of a state elect their U.S. senators. In keeping with the purpose of this amendment, the legislature may constitutionally change the current law to set an earlier date for the election to this U.S. senate seat. I am providing this opinion to offer guidance to the legislature as they consider this issue" ...

Read more: http://www.msnbc.msn.com/id/29398860/

[acmavm]

1. Bye bye Burris?

[struggle4progress]

2. Senate leaders spar over special election

Posted Feb 26, 2009 @ 01:17 PM
SPRINGFIELD, Ill. —

Top Illinois Senate leaders are at odds over how quickly lawmakers should move ahead with creating a special election to fill U.S. Senate seat vacancies.

Senate President John Cullerton, D-Chicago, said Thursday that his legal staff is reviewing an opinion issued Wednesday night by Attorney General Lisa Madigan that says it's constitutional for lawmakers to approve a special election.

Cullerton said the Senate will not act on special election legislation until that review is done and senators see what proposal is approved by the House. Last week, Gov. Pat Quinn said he supported a House measure calling for a special election.

"We're cooperating this year between the House and the Senate. So in this case, we wait and see what the House comes up with," Cullerton told reporters on the Senate floor ... http://www.galesburg.com/news/news_state/x617068942/Senate-leaders-spar-over-special-election

[struggle4progress]

3. Madigan issues surprise opinion on Senate seat

February 25, 2009
BY DAVE MCKINNEY Sun-Times Springfield bureau chief

SPRINGFIELD -- Attorney General Lisa Madigan issued a surprise opinion late Wednesday that could pave the way for state lawmakers to cut Sen. Roland Burris' term short by setting a special election.

"It is my opinion that the legislature may pass a law allowing the people of Illinois to elect a U.S. senator to fill the seat vacated by President Barack Obama. Such a law would be consistent with the U.S. Constitution," Madigan said.

In response to inquiries from state lawmakers, the attorney general's 11-page opinion said the U.S. Constitution's 17th Amendment gives a "preference" to the General Assembly to set a special election for the position even though Burris has been formally seated and sworn in by the U.S. Senate.

"A temporary appointee to the U.S. Senate has no right that prevents the General Assembly from passing legislation to enable the people to elect their U.S. senator," she wrote in the opinion ... http://www.suntimes.com/news/metro/burris/1450486,CST-NWS-bside26web.article

[getthefacts]

4. Any risk we could loose

the seat in a special election?

[murielm99]

5. Yes.

I don't like the mood here at all.

Illinois is known for its corruption. But the corruption is rampant in both parties. Usually, when one party has someone indicted or sent to jail, the other party prevails in the next election.

We COULD lose the seat. The emphasis is on could, because the republicans in Illinois are in disarray.

But this is Obama's seat. The republicans could find a presentable candidate somehow and the party could throw money at him. Republican money could fly in from all over the country.

The republicans have lost so much that it would be a huge psychological victory for them to take Obama's seat. The hate radio shouters and faux news liars would have a field day crowing over it.

Don't put anything past them.

I don't know why they are giving in to the pressure on this. They could tell Burris to sit down, shut up and vote with the party until the end of his term. Or, he could resign and Quinn could appoint someone more acceptable. The republicans have no power. They have nothing to say about it. Let them shout themselves hoarse. We don't have to listen.

Yes, a special election could be bad. We need to avoid it.

[tritsofme]

6. I tend to agree with AG Madigan.

That it is the Constitution that prefers the direct election of senators.

We must not let fear of losing be the only good reason to oppose an election.

[murielm99]

7. Democrats give in to republican pressure all the time.

We let fear of filibusters stop us. We don't frogmarch Rove for refusing to respond to subpoenas. We don't answer the press in an effective manner when they lie about our people and policies.

This is republican pressure, not fear of losing. We need to ignore the pressure.

[happyslug]

8. But the key the the exact wording of the amendment permitting election of senators

Amendment 17 - Senators Elected by Popular Vote. Ratified 4/8/1913.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

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.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

http://www.usconstitution.net/const.html#Am17

Interesting wording in the second paragraph (The first and third do NOT affect this case). Under this amendment the state can hold elections to fill the seat and view the present holder as a temporary place holder. The issue is can the legislature pass a law changing how long the place holder can stay AFTER he is named? In the days of appointed Senators, it was held that once a Senator was elected by the State Legislature, that legislature could NOT later remove him. The Legislature could refuse to re-elect him at the next election BUT not remove him in mid- office. The same rationale can apply here, the state legislature has the right to set elections times for Senate when the seat is open, but once someone is named the legislate has no right to change the law so to end the appointed Senator's term early.

The Attorney General apparently has taken the position that since the Amendment was intended to permit election of Senators NOT appointments the Legislature has the right to change the terms of such appointed Senators at any time until there is an election. At first thought I opposed the idea, I took the position that once appointed under the laws of Illinois, that person stayed the Senator until the time set for the election of a Senator as previously set by the State legislature. That MAY not be the case given the wording of the amendment, which gives the Governor the right to appoint a Senator IF PERMITTED BY STATE LAW and then only till there is an election. It does NOT say such election law has to exist at the time the Senator is appointed (In fact the appointment itself is only permitted if the state law permits such appointments). Thus the AG may be right, the Legislature may have the right to re-set the election date at any time as long as it is reasonable (i.e. not Tomorrow for example). Having to wait for the next scheduled Election date may be to long, but it is the long when the Senator was appointed and that is his best argument against the position of the AG, i.e. he was appointed under state law, and such appointments are final until an election set under the same existing state law.

Interesting concept, lets see how the courts will rule.