Y'know... an Illinois special election really should be unconstitutional

[Kurt_and_Hunter]

I say "should be" rather than "is" because I am making a general argument about election law, not predicting what any court would say, or on what basis.


The procedures for selecting an office-holder are supposed to be set in advance, independent of events.

Barack Obama has resigned from the Senate. That seat is open.

You cannot say, "How will we fill this open seat here?" That is governed by existing law.

Tough cases make bad law. When the "right answer" is at odds with the logic of our system of laws it is tempting to just suspend the framework of our system... just that once. Such ad hoc "outcomes are more important than laws" approach is half of what has made the last eight years such a nightmare.

There is plenty of reason to want to have a special election in this Illinois mess, but imagine this scenario:

A senator resigns in a Republican leaning state. (Say Kansas...) The State Legislature is Republican. The Governor happens to be a Democrat. The State legislature calls an emergency session to pass a law saying the vacant seat should be filled by special election.

That would be obviously improper. The legislature cannot look at an existing senate vacancy and says, "we want to dictate how this seat is filled, in contravention of existing law." With the partisan labels and partisan motives in place everyone here would agree that the legislature cannot change the rules just because they don't like the likely outcome of the current rules. (They can change the rules for the NEXT vacancy, of course.)

Kansas would be seeking a Republican. Illinois would be seeking someone "respectable." Though one sounds bad and the other sounds good, neither goal is proper as an after-the-fact special case sort of thing. They are both just desires to get a certain kind of senator that the existing rules won't get you.

The fact that Blago making the appointment that only he can make is embarrassing is irrelevant to the question. The state legislature would be saying, "we want to change the set-up here because we don't like who the Governor will pick." That's all it is... an assumption that the governor's pick will, in some way, suck because the governor sucks. It's unusual to have a case where NO pick by the governor would please people because he's so awful, but our system is supposed to be able to handle lousy office-holders. (And a good thing, too. Otherwise where would we be?)

Voters routinely pick indicted candidates. Nobody says, "The process is invalid because the voters picked someone that Congress won't seat." The voters have the right to pick Charles Manson if that's their deal.

And Blago filling that senate seat is as sanctified as an election because that's the process. This is a Representative democracy full of delegated authority and the People of the State of Illinois CHOSE Blago to fill that seat! (Thy wouldn't pick him today, but that's irrelevant to our system. Bush would have been out the door in 2006 if we had constant plebiscites, but we don't.)

Also, it is not a good idea to have existing democratic processes suspended based on the say-so of the FBI or US Attorney's office. In this case I'm sure Fitzgerald is mostly right and Blago is a crazy crook, but that's not how the system is supposed to work. If, in the Kansas example I used, one of the Rove US Attnys indicted the Governor just as she was about to chose a new senator it would not, and should not, up-end the existing framework of law.

There is no due process for anyone to even rely on here. No trial. No examination of evidence. (Again, I am sure that in this case the facts are probably bad, but my 'probably' doesn't get it.)

Again, tough cases make bad law. I expect some very bad law to be made in this instance.

[Radical Activist]

1. What part of the Constitution?

You make a pretty good argument but I'm wondering if there's really a part of the state Constitution that could invalidate what they're doing. I'm not aware of one.

[Darth_Ole]

2. I've thought about this, as well...

I wonder if the only good/legal option is for Blagojevich to resign and let the Lt. Gov. make the appointment.

But Durbin was one of the first to call for a special election. If there's a way for such an event to happen, I'm sure he would know.

[nemo137]

3. IL State constitution, if I remember 10th grade civics, says

that the governor is allowed to appoint a successor to an open senate seat, and the lt. gov is allowed to do it if the governor is removed from office. That said, I think at this point the options are a special election or leaving the seat vacant until a new governor rolls in in 2010. Quinn could appoint a senator, but I get the feeling that Blago is going to drag this out as long as he can.

[WeDidIt]

5. They could impeach Blago on the fast track

It would take about two weeks.

[Radical Activist]

7. The method of appointment isn't in the Constitution.

It's only a state law.
I would prefer Quinn do it and Rod will be removed within a month. But I don't think its unconstitutional even if its not a good idea.

[nemo137]

10. Hats off to you.

10th grade gets further away every year. Thanks for the correction.

[Kurt_and_Hunter]

13. Yes, but the method of choosing presidential electors isn't in the constitution either

(I am not arguing with you in any way, just riffing on the very valid observation you make.)

The Florida state legislature can take the popular vote for electors away from the people of Florida if it wishes.

But it could not pick the electors in 2000 (like it wanted to) because it had delegated the choice to the people.

The distinction that one is a vacant seat and the other was an election with an indistinct result is worth noting but not dispositive. It is easy to imagine scenarios where a state legislature might change election laws well before a given election day because polls showed that the election wasn't working out how they wanted.

I consider Blago's internal whims to be, at this point, as legally meaningful as the votes of the people of Florida in 2000 insofar as both are the pre-prescribed method for picking an office-holder.

[Kurt_and_Hunter]

6. Bush v. Gore was full of presumptions against ex post facto election law, but

the presidency is a unique sort of election because every state must vote on the same day.

[H2O Man]

4. Amendment 17, section 2

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.

[Radical Activist]

8. So the power is with the legislature

to decide whether a Governor can make appointments. The legislature is free to take that power away.

[Kurt_and_Hunter]

14. But not in a specific case.

The power to chose presidential electors also lies solely with state legislatures. That's a fact.

But the state legislature cannot change the rules in the midst of a specific circumstance.

That would be like the Florida legislature in 2000 saying, "We have the sole constitutional authority to determine the method by which Florida choses its electors, so we are going to send a slate for Bush."

Even while desperate to install Bush the SCOTUS made it clear in Bush v. Gore that the constitutional authority to dictate the process impartially and in advance does not grant a state legislature any power to intervene in a specific case in contravention of the procedures they already set up.

[BootinUp]

9. Only if it says so in the constitution. And they can't change it

fast enough, lol. Not an expert on Illinois law so I defer any further comment.

[TheDoorbellRang]

11. I'm new to IL politics

just having moved here in 2007, but I've a question. Do you know if IL only has special elections if the governor is of the opposing party?
I'm in Hastert's old district, and when he resigned, we had a special $1 million election to replace him with Foster(D) last March, six months before the fall election.

IMO, Blago should resign and have Quinn step in, who should then assign the senate seat. These special elections get costly.

[Radical Activist]

12. They're required for US Congress.

Its in the US Constitution. US Congress is the only office that can never be filled by appointment and only elected by the people directly.

[Orsino]

15. You mean, to fit in with the rest of Illinois political activity?

(Sorry to break out the broad brush, even in jest, if it offends, but damn, the state has some major clean-up to do. Y'all Illinoians are making Georgia look clean these days.)

[Kurt_and_Hunter]

16. It is striking.