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Illinois Must Have Special Election To Fill Obama Senate Vacancy: Appeals Court

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WASHINGTON--A federal appeals panel in Chicago on Thursday cleared the way for Illinois to have a special election on Nov. 2 to fill the weeks that will be left to Barack Obama's original Senate term. That means voters on Nov. 2 will vote twice for Illinois senate: for the six year term starting in January, 2011, and the 62 days that will be left to Obama's original term.

Democrat Alexi Giannoulias and Republican Mark Kirk, the major party nominees for Senate, have both said it is best at this point to just let Sen. Roland Burris (D-Ill.) appointed by former Gov. Blagojevich--serve out his term.

The 7th Circuit Court of Appeals panel--Ilana Diamond Rovner, Diane P. Wood and John Daniel Tinder--refused on Thursday to reconsider their June decision for a special election.

Burris, who along with Gov. Quinn and Attorney General Lisa Madigan fought the lawsuit brought by lead attorney Martin Oberman--has said he will be a candidate in the special election.

Oberman has been arguing that no primary is necessary and the federal panel seemed to agree with him. In the order issued Thursday the judges gave broad discretion to a federal district court judge to implement the election: "However Illinois conducts its election for the vacancy, the state should endeavor to certify the results of that election as soon as possible, so that the replacement senator may present his or her credentials to the Senate and take office promptly."

For text of Thursday's order, click below.
For links to text of the decision, my columns on this and other pleadings, click here.

Here is the complete text of the order issued Thursday....

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 22, 2010

Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-2219
GERALD A. JUDGE and DAVID
KINDLER,
Plaintiffs-Appellants,
v.
PATRICK J. QUINN, Governor of the
State of Illinois, and ROLAND W.
BURRIS, U.S. Senator,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District
of Illinois
No. 09 C 1231
John F. Grady, Judge.

O R D E R

On June 28, 2010, Defendant-Appellee Patrick J. Quinn filed a "Motion to Amend
Opinion or, in the Alternative, Petition for Rehearing En Banc, of Defendant-Appellee Patrick J. Quinn, Governor of the State of Illinois." As ordered by the court, Plaintiffs-Appellants filed their response to that motion on July 7, 2010. The court construes the motion as a petition for rehearing or rehearing en banc.

On consideration of the petition, so understood, all of the judges on the original panel
have voted to deny rehearing, and no judge in active service has requested a vote on the No. 09-2219 Page 2 petition for rehearing en banc. It is therefore ORDERED that the petition for rehearing en banc is DENIED.

It is further ORDERED that the opinion of the court is revised as follows. On page 38, line 19, the following language is deleted:

However Illinois conducts its election for the vacancy, the replacement senator
presumably would present his or her credentials to the Senate and take office
immediately, while the senator elected to begin service with the 112th Congress
would not take office until January 3, 2011.
In its place, the following two new paragraphs are added:
The district court has the power to order the state to take steps to bring
its election procedures into compliance with rights guaranteed by the federal
Constitution, even if the order requires the state to disregard provisions of state
law that otherwise might ordinarily apply to cause delay or prevent action
entirely. It is elementary that the Seventeenth Amendment's requirement that
a state governor issue a writ of election to guarantee that a vacancy in the state's
senate delegation is filled by an election is an aspect of the supreme law of the
land. U.S. CONST. art VI, cl. 2. To the extent that Illinois law makes compliance
with a provision of the federal Constitution difficult or impossible, it is Illinois
law that must yield. See Rice v. Cayetano, 528 U.S. 495 (2000) (holding that statelaw
rules governing elections of trustees to the Office of Hawaiian Affairs
violated the Fifteenth Amendment); Dunn v. Blumstein, 405 U.S. 330 (1972)
(striking down state-law durational residency requirements as unconstitutional
under the Fourteenth Amendment); Harper v. Virginia Bd. of Elections, 383 U.S.
663 (1966) (holding that state-law poll taxes violated the Fourteenth
Amendment).
However Illinois conducts its election for the vacancy, the state should
endeavor to certify the results of that election as soon as possible, so that the
replacement senator may present his or her credentials to the Senate and take
office promptly. The senator elected to begin service with the 112th Congress
will take office as the Constitution provides on January 3, 2011. U.S. CONST.
amend. XX, sec. 1.

In all other respects, the petition for rehearing is DENIED.

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Lynn Sweet

Lynn Sweet is a columnist and the Washington Bureau Chief for the Chicago Sun-Times.

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This page contains a single entry by Lynn Sweet published on July 22, 2010 3:33 PM.

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