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State of Illinois new filing fighting two Senate elections Nov. 2

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No.09-2219
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
GERALD ANTHONY JUDGE and DAVID
KINDLER,
Plaintiffs-Appellants,
v.
PATRICK J. QUINN, Governor of the State
of Illinois, and ROLAND W. BURRIS, United
States Senator,
Defendants-Appellees.
))))))))))))
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern
Division.
No. 09-CV-1231
The Honorable
JOHN F. GRADY,
Judge Presiding.
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
BRETT E. LEGNER
Assistant Attorney General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-2146
LISA MADIGAN
Attorney General
State of Illinois
MICHAEL A. SCODRO
Solicitor General
100 West Randolph Street
12th Floor
Chicago, Illinois 60601
(312) 814-3312
Attorneys for Defendant-Appellee
Patrick J. Quinn, Governor of the
State of Illinois.
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TABLE OF CONTENTS
PAGE(S)
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The Panel Decision Conflicts With Rodriguez and Lynch . . . . . . . . . . . . . . . 4
II. The One-Month Period Between Candidate Certification And January 3 Is
De Minimis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. Illinois Law Requires More Than Four-And-A-Half Months To Prepare
For A Special Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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TABLE OF AUTHORITIES
CASES PAGE(S)
ACLU v. Taft, 385 F.3d 641 (6th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12
Bullock v. Carter, 405 U.S. 134 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Jackson v. Ogilvie, 426 F.2d 1333 (7th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . passim
Lynch v. Illinois State Bd. of Elections, 682 F.2d 93 (7th Cir. 1982) . . . . . . . passim
Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) . . . . . . . . . . . . . . . passim
Swamp v. Kennedy, 950 F.2d 383 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) . . . . . . . . . . . . . . . . . 7
United States v. Huffstatler, 571 F.3d 620 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 1
Valenti v. Rockefeller 292 F. Supp. 851 (S.D.N.Y),
aff'd, 393 U.S. 405 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
CONSTITUTIONAL PROVISIONS, STATUTES, and OTHER SOURCES
42 U.S.C. § 1973ff-1(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fed. R. App. P. 35(b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Fed. R. App. P. 35(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Fed. R. App. P. 40(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Term of a Senator--When Does It Begin and End: Constitution, Laws, and
Precedents Pertaining to the Term of a Senator, Sen. Doc. 98-29 (1984) . . . . 9
CAL. ELEC. CODE § 10720 (West 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CONN. GEN. STAT. ANN. § 9-211 (West 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10 ILCS 5/7-1(a) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10 ILCS 5/7-2 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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10 ILCS 5/7-10 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10 ILCS 5/7-12(1) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10 ILCS 5/7-13 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/7-13.1 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/7-61 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10 ILCS 5/10-4 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/10-6 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/10-8 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/10-10.1 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/16-5.01 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/16-5.01(a) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/16-5.01(b) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10 ILCS 5/18A-15(a) (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8, 14
10 ILCS 5/19-8 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 ILCS 5/22-1 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 ILCS 5/22-5 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 ILCS 5/22-8 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 ILCS 5/22-9 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 ILCS 5/22-9.1 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 ILCS 5/22-15 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10 ILCS 5/25-7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15
10 ILCS 5/25-8 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IOWA CODE ANN. § 69.11 (West 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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IOWA CODE ANN. § 69.13 (West 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LA. REV. STAT. ANN. § 18:1278(C) (West 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11
MD. CODE ANN., ELEC. § 8-602(a)(3) (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
NEB. REV. STAT. § 32-565(2) (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
N.Y. PUB. OFF. LAW § 42(4-a) (McKinney 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
N.D. CENT. CODE § 16.1-13-08 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
OHIO REV. CODE ANN. § 3521.02 (Baldwin 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
OKLA. STAT. ANN. tit. 26, § 12-101(B) (West 2010) . . . . . . . . . . . . . . . . . . . . . . . . . 11
S.C. CODE ANN. § 7-19-20 (Law. Co-op. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S.D. CODIFIED LAWS ANN. § 12-11-6 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
W. VA. CODE § 3-10-3 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
WYO. STAT. § 22-18-111(a) (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
http://thomas.loc.gov/home/ds/index.html#senate . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
http://www.senate.gov/legislative/ resources/pdf/2009_calendar.pdf . . . . . . . . . . . . 8
Motion to Amend Opinion, United States v. Huffstatler,
No. 08-2622 (7th Cir. Apr. 21, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Governor has captioned the instant filing 1 as a "Motion to Amend Opinion,"
rather than a "Petition for Panel Rehearing," because he does not seek modification of this
Court's judgment, which affirmed the district court's order denying preliminary injunctive
relief. Instead, for the reasons stated herein, the Governor seeks reconsideration of the
Court's opinion to the extent it suggests that Illinois must conduct an additional election to
fill "the Obama vacancy," with details of that election to be determined by the district
court. Slip op. at 38. Nevertheless, this filing employs the standard for panel rehearing
set forth in Fed. R. App. P. 40, and if, in light of the requested relief, the Court concludes
that the filing is more properly considered as a "Petition for Panel Rehearing," we
respectfully request that the Court recharacterize it accordingly. See United States v.
Huffstatler, 571 F.3d 620, 621 (7th Cir. 2009) (construing motion to amend opinion, which
sought redaction of specified language but not modification of judgment, see Motion to
Amend Opinion at 3, 31, United States v. Huffstatler, No. 08-2622 (7th Cir. Apr. 21, 2009),
as petition for rehearing).
This filing also includes an alternative request for rehearing en banc,
notwithstanding that the Governor technically prevailed on this appeal, because the
district court has construed the panel decision to do more than affirm the denial of
plaintiffs' motion for a preliminary injunction. As the attached transcript of last week's
hearing makes plain, the district court understands this Court's decision to mandate
particular relief. See, e.g., SA 33 (construing panel decision to include a "holding that we
must" issue a writ of election). Accordingly, the Governor seeks en banc review as a party
aggrieved by the panel decision. Indeed, because the parties did not brief the question
whether, if the General Assembly acted properly in setting the next Senate election for
November 2, there would have to be two Senate elections that day--and the district court
understands itself to be bound by this Court's decision on that score (and has therefore
expressed the hope that this filing will be treated as "an urgent motion for
reconsideration," SA 29)--this filing represents the Governor's only opportunity to brief
that issue in any court.
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Introduction
Defendant Governor Quinn respectfully requests that the panel amend its
decision of June 16 or, alternatively, that the Court rehear this appeal en banc. The
panel decision should be amended to correct points of law either overlooked or
misapprehended. Cf. Fed. R. App. P. 40(a)(2) (setting out requirements for panel
rehearing).1 Specifically, the decision overlooks the import of the Seventeenth
Amendment analysis in Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982),
and Lynch v. Illinois State Board of Elections, 682 F.2d 93 (7th Cir. 1982).
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Moreover, in declining to hold that the period between November 2, 2010 and
January 3, 2011 is de minimis, slip op. at 37, the decision misapprehends Illinois
law, which does not permit a candidate elected on November 2 to assume office
until election results are certified in early December, when there will be few to no
days left in the Senate session, and the decision fails to account for the risk of
serious prejudice to Illinois voters if the State must include two elections for the
same Senate seat on the November ballot. Finally, the decision errs in presuming
that sufficient time remains before the general election to include an additional
Senate race on the November 2 ballot consistent with Illinois law.
Accordingly, the decision should be amended to make clear that where the
Senate term at issue ends immediately following the next general election--as it
does here, for then-Senator Obama's term would have concluded in January of
2011--the Governor's appointee may serve out the remainder of the term, rather
than step down for the short period remaining after the November election results
are certified in December. Amending the decision to account for this rule would
require the panel to qualify its statement that "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 senate seat," slip op. at 33 (emphasis
added), and to modify pages 35-38 of the opinion to make clear that, under the
circumstances present here, a writ of election is not required.
In the alternative, each of the bases for en banc review is satisfied here. As
noted, the panel decision conflicts with the United States Supreme Court's decision

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in Rodriguez and with this Court's own decision in Lynch, and consideration by the
full Court is therefore necessary to secure and maintain uniformity of this Court's
decisions. Fed. R. App. P. 35(b)(1)(A). Further, this proceeding involves questions
of exceptional importance, namely, whether the Constitution requires States to hold
special elections to replace vacant Senate seats in all cases, and whether Illinois
must hold two elections for the same seat on the same day--notwithstanding the
likelihood of confusion and other prejudice to Illinois voters--when any candidate
elected to serve out the remainder of President Obama's Senate term would not
take office until sometime in December, only a matter of days before the term ends
on January 3, 2011. Fed. R. App. P. 35(b)(1)(B). Accordingly, if the panel decision
is not amended along the lines described above, then the Governor requests that the
Court rehear the appeal en banc.
Argument
The focus of the parties' dispute on appeal was whether it is the Governor or
the General Assembly that the Seventeenth Amendment authorizes to schedule a
Senate replacement election. Pls. Br. 1, 6-20; Governor's Br. 19-27. This Court
rejected plaintiffs' theory that the Governor alone has this power, slip op. at 10-11,
but the panel decision raises an issue that the parties did not brief: If the General
Assembly lawfully chooses the next general election as the date for selecting a
replacement Senator, then may the Governor's interim appointee serve out the
remainder of the Senate term in those cases where, as here, that term ends the
January following the next general election? For three independent reasons, the
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answer in this case is yes.
I. The Panel Decision Conflicts With Rodriguez And Lynch.
The conclusion that the Seventeenth Amendment does not permit the
appointed Senator to complete the current Senate term, slip op. at 38, is in conflict
with the Supreme Court's decision in Rodriguez and this Court's decision in Lynch.
1. Rodriguez concerned a federal constitutional challenge to a Puerto Rico
law permitting the appointment of a state legislator for the remainder of a vacated
term. 457 U.S. at 4. The Court acknowledged that this local legislative vacancy did
not squarely implicate the Seventeenth Amendment, id. at 11, but the Court looked
to the Amendment for guidance and upheld the Puerto Rico law because the
Amendment permits States "to forgo" special elections entirely: "the fact that the
Seventeenth Amendment permits a state . . . to forgo a special election in favor of a
temporary appointment to the United States Senate suggests that a state is not
constitutionally prohibited from exercising similar latitude with regard to vacancies
in its own legislature." Id. at 11. Notwithstanding its "effect on the right of . . .
citizens to elect the members of the Puerto Rico Legislature," the Court thus upheld
"[t]he Commonwealth's choice to fill legislative vacancies by appointment rather
than by a full-scale special election . . . ." Id. at 12 (emphasis added). Contrary to
the panel decision in this case, Rodriguez thus reads the Seventeenth Amendment
to permit an interim appointee to serve through the end of the appointed term.
2. The same is true of this Court's decision in Lynch. There, voters
At one 2 point, Lynch referred to the appointee "hold[ing] office for twenty-five
months, until the consolidated primary election," rather than for the remaining 27 months
of the term. 682 F.2d at 95. But aside from being infeasible--for it is not practical to
assume office the day of, or the day after, an election--this reference merely supports the
Governor's contention that the two-month period between an election and the start of the
next term is de minimis. Immediately following the reference to 25 months, the Court
makes clear that the appointee will in fact "serve out the remainder of the term," id.,
showing that the Court understood this to be the practical effect of its ruling.
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challenged a Chicago ordinance authorizing the mayor to fill an aldermanic vacancy
by appointment for up to 28 months until the next regular aldermanic election. 682
F.2d at 94-95. When a vacancy occurred with less than 28 months remaining in the
four-year term, the mayor appointed an alderman to "serve out the remainder of the
term." Id. at 95.2 Lynch explained that Rodriguez "expressly adopted the rationale
of Valenti [v. Rockefeller, 292 F. Supp. 851, 858 (S.D.N.Y.), aff'd, 393 U.S. 405
(1969)]," that States were not required to hold special elections under the
Seventeenth Amendment, but rather could fill Senate vacancies by appointment
until the next regular election in accord with the State's regular election procedure.
682 F.2d at 96.
Lynch went on to quote Rodriguez for the proposition that, because the
Seventeenth Amendment permits States to fill Senate vacancies by appointment,
there is no federal constitutional prohibition on filling local offices this way. Id.
Lynch reasoned that "Rodriguez and Valenti clearly show that [the ordinance] is not
constitutionally infirm. Both decisions sustain the authority to fill vacancies in
elective offices by appointment, even though the appointee will hold office for the
duration of the term." Id. (emphasis added).
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As in Rodriguez, the Court nowhere suggested that the ballot at the next
election must include two lists of names, one to fill the seat for the coming term and
another for the remaining weeks of the current term. Indeed, even plaintiffs
acknowledge that these two decisions permitted the appointees to serve out the
remainder of their respective terms--i.e., that the courts recognized "no Federal
constitutional right to have an election, instead of an appointment, to fill vacancies
in state and local offices." Pls. Reply Br. 9. What plaintiffs failed to acknowledge
was that those holdings turned on the courts' conclusion that the Seventeenth
Amendment permits the same thing.
In sum, while the panel decision here appears to require a Senator to take
office "immediately" for the final two months of the Senate term, rather than take
office on January 3, 2011, slip op. at 38, neither Rodriguez nor Lynch read the
Seventeenth Amendment to require this result. Under these decisions, there is no
need for a second Senate election on November 2 to fill the final two months of the
Obama term. See generally Valenti, 292 F. Supp. at 861 (State is entitled to "forgo a
special election" in selecting replacement Senator). Instead, it is sufficient that the
Senate position is filled by election on that date, with the winner to take office on
January 3, 2011, in accord with Illinois's normal election procedure.
II. The One-Month Period Between Candidate Certification And
January 3 Is De Minimis.
Regardless of the proper interpretation of the proviso in the Seventeenth
Amendment, a writ of election is not required here because the time that the
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replacement Senator would serve is de minimis--indeed, as often as not, the Senate
is not even in session during the days in question. State regulation of elections
inevitably imposes burdens on voters and candidates, and rational, minimal
impositions are not unconstitutional. Timmons v. Twin Cities Area New Party, 520
U.S. 351, 358 (1997). Rodriguez thus held that a 40-month appointment to fill a
vacancy was a "minimal" deprivation of the right to vote, 457 U.S. at 12, and the
panel decision itself acknowledges the existence of some "de minimis" exception
under the Seventeenth Amendment, though the Court was not prepared to hold
that the time period in this case qualified. Slip op. at 37; see also ACLU v. Taft, 385
F.3d 641, 650 (6th Cir. 2004) ("there may be situations where an executive's duty is
excused because the time remaining on the Congressional term is truly de
minimis"). For the reasons that follow, the period in this case is de minimis, and
therefore no writ of election is required.
1. The interval between the early November election and the beginning of
the new Congress in January allows parties to mount legal challenges to the
election, and it permits election officials to count absentee ballots, conduct recounts,
and certify results. Indeed, even under ideal conditions--without legal challenges
or recounts--the Illinois State Board of Elections does not certify results from a
November election until December. The State's 110 local election authorities have
until November 23, 2010 to complete the tabulation of absentee and provisional
ballots, canvass the votes, declare the results, and report them to the Board. 10
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ILCS 5/18A-15(a), 19-8, 22-1, 22-5, 22-8, 22-9, 22-15 (2008). The last day for the
Board to certify and proclaim the results of that election is December 3, 2010, 10
ILCS 5/18A-15(a) (2008), and parties may then petition for a recount. 10 ILCS 5/22-
9.1 (2008). In short, under Illinois law, a Senator elected at the November general
election will not be able to present his credentials to the Senate until December 3,
2010, at the earliest, and therefore would serve only during the remaining days of
December.
Not only is this half of the period that the panel decision assumed it to be,
but it is one during which the Senate is frequently out of session, convening only for
a few days when it convenes at all. While Congress has yet to announce its target
adjournment date for the current session, last year that date was October 9, 2009.
Http://www.senate.gov/legislative/resources/pdf/2009_calendar.pdf. And with midterm
elections this November, it is reasonable to anticipate that the Senate will
select an early adjournment date to permit Senators to campaign. In fact, since
1978, there has been a hold-over session in December only about 50% of the time
(17 out of 32 sessions), and on those occasions when there have been such sessions,
its average length has been little more than 11 days (192 total session days across
17 December hold-over sessions). Http://thomas.loc.gov/home/ds/index.html#senate.
Under any reasonable view, this "period of possible service could truly be deemed de
minimis." Jackson v. Ogilvie, 426 F.2d 1333, 1336 (7th Cir. 1970).
2. Meanwhile, the likely prejudice to Illinois voters of two elections on
November 2 is substantial. The most obvious risk is confusion. "Avoiding voter
3 It would be impermissible under Senate rules (if not the Constitution) to hold a
single election for the coming term but have the winner begin service before January 3,
2011. See The Term of a Senator--When Does It Begin and End: Constitution, Laws, and
Precedents Pertaining to the Term of a Senator, Sen. Doc. 98-29, at 13-14 (1984) (SA 45-46).
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confusion is . . . a compelling state interest," Swamp v. Kennedy, 950 F.2d 383, 386
(7th Cir. 1991) (citing Bullock v. Carter, 405 U.S. 134, 145 (1972)), and having two
votes for the same seat on the same day is likely to dissuade some voters from
selecting anyone from the list that appears second on the ballot. Election returns
suggest that this is precisely what occurred in the 1970 congressional election
litigated in Jackson v. Ogilvie, in which more people voted for candidates to fill the
remaining portion of the then-current term than voted to elect a House member for
the full, upcoming term, presumably because the choices appeared in that order on
the ballot.3 See SA 40-41.
The other potential source of prejudice for Illinois voters is the fact that this
year, as is often true, at least two of the several likely Senate candidates (the two
major-party candidates) currently hold other public offices, with terms that do not
expire until January. SA 42. This poses a particular hardship when a current
member of the U.S. House of Representatives runs for Senate. If the House
member were elected to serve out the remaining weeks of the current Senate term,
his departure from the House would leave voters in his former congressional district
entirely unrepresented in that body--precisely the outcome that this Court found
unacceptable in Jackson. 426 F.2d at 1337. Indeed, if there is a public interest in
replacing one Senator with another for one month or less, then surely there is an
-10-
even greater interest in avoiding a district's complete lack of representation during
that same period.
3. In light of the obvious prejudice from holding two elections for the same
Senate seat on November 2, it is unsurprising that Illinois construes its own law to
avoid that result. Section 25-8 of the Election Code provides that a Senate vacancy
shall be filled by appointment until it is filled at the next election of representatives
in Congress, at which point the Senator elected "shall take office as soon thereafter
as he shall receive his certificate of election." 10 ILCS 5/25-8 (2008). The State
reads this provision to require an election to fill a vacancy before its expiration
unless, as here, the Senate term is set to expire the January following the next
general election. In that case, the appointed Senator sits for the remainder of the
term, and the Senator elected at the November election assumes the seat on
January 3. The State's understanding of its own election law represents a
considered judgment that an election to fill the office for a month at most is not
justified--that the cost and voter confusion caused by placing two elections for the
same seat on the same ballot do not merit removal of the appointed Senator for such
a brief period.
Illinois is far from unique in this regard. Many States make express what
Illinois construes its law to require--that an appointed Senator may complete a
vacated Senate term if the term expires the January after the November election.
CAL. ELEC. CODE § 10720 (West 2009); CONN. GEN. STAT. ANN. § 9-211 (West 2010);
IOWA CODE ANN. §§ 69.11, 13 (West 2010); LA. REV. STAT. ANN. § 18:1278(C) (West
-11-
2009); MD. CODE ANN., ELEC. § 8-602(a)(3) (2010); NEB. REV. STAT. § 32-565(2)
(2009); N.Y. PUB. OFF. LAW § 42(4-a) (McKinney 2010); N.D. CENT. CODE § 16.1-13-
08 (2009); OHIO REV. CODE ANN. § 3521.02 (Baldwin 2010); OKLA. STAT. ANN. tit. 26,
§ 12-101(B) (West 2010); S.C. CODE ANN. § 7-19-20 (Law. Co-op. 2009); S.D.
CODIFIED LAWS ANN. § 12-11-6 (2009); W. VA. CODE § 3-10-3 (2010); WYO. STAT.
§ 22-18-111(a) (2009). Indeed, as the panel decision observes, States frequently
leave the appointee in place until the new term begins. Slip op. at 27.
These state policy determinations are entitled to substantial deference. See
generally Valenti, 292 F. Supp. at 863 (recognizing "apparent intent of the drafters
of the Seventeenth Amendment to place decisions concerning the conduct of vacancy
elections largely in the hands of the various state legislatures"). And such historical
and contemporary state practices properly inform courts' reading of the Seventeenth
Amendment. See id. at 858. Yet the panel decision would hold these state laws and
longstanding practices unconstitutional.
4. Finally, Jackson does not support the panel decision, which cites that case
for the following proposition: "We are not prepared to say that [the period from
November 2, 2010 to January 3, 2011] is such a short period of time that it should
be dismissed as de minimis." Slip op. at 37. Jackson presented the very different
circumstance of a congressional district left entirely unrepresented by a vacancy in
the U.S. House of Representatives. 426 F.3d at 1334 (plaintiffs alleged right "to
representation in the House of Representatives"); 1335 (recognizing "Plaintiffs'
-12-
claim that they are being deprived of a right of representation"); 1336 (citing "the
right of the people of the congressional district to be represented in the House of
Representatives in Congress") (internal quotations omitted; omission in original).
The Jackson Court thus merely declined to conclude "that representation [during
those two months] is de minimis." Id. at 1337 (emphasis added).
But here, Illinois has representation in the Senate; the only question is who
will serve on the few days, if any, during which the Senate convenes this December.
The de minimis analysis is therefore substantially different than it was in Jackson.
As Valenti observed, "[t]he framers of the [Seventeenth] Amendment might logically
have concluded that prompt elections were less essential for vacancies occurring in
the Senate than in the House since a state will be represented in the Senate by the
Governor's temporary appointee . . . ." 292 F. Supp. at 863. "Furthermore, the state
almost always will be represented by its other elected Senator during the existence
of any vacancy, while in contrast a vacancy in the House . . . leaves the affected
district's residents completely without representation in the House until an
election." Id.; see also Taft, 385 F.3d at 649 n.3 (recognizing "substantially
diminished" "probativeness of Valenti" in case involving vacant House seat, for the
Constitution "allows Senate vacancies to be filled by the governor through a
temporary appointment," and "if one of the state's seats in the Senate becomes
vacant, that state will still be represented in the Senate"). Nor did Jackson
consider the fact that anyone elected to the remainder of the congressional term
-13-
there would likely serve for only a few days, if at all. See supra pp. 7-8.
In short, the period between the certification of the November 2 election
results and January 3 is de minimis, and Jackson is not to the contrary.
III. Illinois Law Requires More Than Four-And-A-Half Months To
Prepare For A Special Election.
The Seventeenth Amendment "allow[s] the states to conduct Senate vacancy
elections in accordance with their regular election procedures, so long as those
procedures further substantial state interests," Valenti, 292 F. Supp. at 861, and
the panel decision instructs that the balloting in this case must "compl[y] with
Illinois and federal law," slip op. at 38 (emphasis added). But the panel then
suggests a remedy that presumes that Illinois even permits a second Senate
election to appear on the November 2 ballot. It does not, and thus the district court
would have to supplant the Illinois Election Code with a remedy cut from whole
cloth. And even then, any judge-made remedy runs the risk of curtailing essential
rights, including the rights of military personnel and other absentee voters to
receive a reasonable period within which to cast their ballots.
Under Illinois law, the election cycle for a replacement Senator normally
requires at least seven-and-a-half months. 10 ILCS 5/7-1(a) (2008) (established
parties must nominate candidates); 10 ILCS 5/7-2 (2008) (defining parties); 10 ILCS
5/7-61 (2008) (if "special primary" is called, party candidates have at least 15 days
to secure signatures required to appear on primary ballot, rather than 90 days
normally required under 10 ILCS 5/7-10); 10 ILCS 5/7-12(1) (2008) (party
4 The alternative is to provide these voters with blank, write-in ballots and a
separate list of candidates. 10 ILCS 5/16-5.01(b) (2008). For obvious reasons, this is not
the Election Code's preferred method.
-14-
candidates must file nomination petitions at least 92 days before primary); 10 ILCS
5/7-13, 10-8 (2008) (five-day period for objecting to petitions); 10 ILCS 5/10-10.1
(2008) (expedited judicial review of election authority's decisions on objections); 10
ILCS 5/7-13.1 (2008) (Board of Elections must certify primary candidates at least 61
days before primary); 10 ILCS 5/18A-15(a) (2008) (31 days to certify primary results
following primary); 10 ILCS 5/10-4, 10-6 (2008) (independent and new-party
candidates have 90 days to secure signatures to appear on general ballot and must
file petitions at least 134 days before general election); 10 ILCS 5/16-5.01 (2008)
(absentee ballots must be printed at least 60 days before general election); supra
p. 8 (31 days to certify general election results).
Indeed, the requirement that ballots be printed and ready to send to absentee
military and other voters at least 60 days before the general election alone advances
the real deadline for finalizing the ballot to early September of this year. 10 ILCS
5/16-5.01(a) (2008); see also 42 U.S.C. § 1973ff-1(a)(8) (federal law requiring that
ballots be ready to send to military and overseas voters no less than 45 days before
election).4 Even under an extraordinarily abridged schedule, this leaves slightly
more than two months for would-be candidates to gather signatures, to hold
primaries, and to certify primary results. Significantly, Illinois law requires 115
days even to hold a much smaller, special election for a vacant House seat, 10 ILCS
-15-
5/25-7 (2008), and only slightly more than that period remains here. The practical
hurdles to an expedited, special Senate election in November--one that protects the
interests of both voters and would-be candidates--are alone grounds not to require
a separate writ of election in this case, "[r]egardless of the constitutional merits of
plaintiffs' argument." Valenti, 292 F. Supp. at 855 n.6 ("sufficient time would not
remain following the final resolution of this litigation to permit the parties to
nominate candidates and conduct a campaign prior to the election on November
5th"); cf. Jackson, 426 F.2d at 1337 (unlike here, "special election (and the primary
which would have to precede it) could be called as late as May 25," 19 days after
this Court's decision issued).
Conclusion
For the foregoing reasons, the Governor respectfully requests that the panel
amend its June 16 decision or, alternatively, that the Court rehear this appeal en
banc.
Respectfully submitted,
_________________________ LISA MADIGAN
MICHAEL A. SCODRO Attorney General
Solicitor General State of Illinois
BRETT E. LEGNER
Assistant Attorney General
100 West Randolph Street, 12th Floor June 28, 2010
Chicago, Illinois 60601
(312) 914-3696
CERTIFICATE OF COMPLIANCE WITH PAGE LIMITATION,
TYPEFACE REQUIREMENTS, and TYPE STYLE REQUIREMENTS
I hereby certify that this petition complies with the typeface requirements of
Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of
Federal Rule of Appellate Procedure 32(a)(6) because the petition has been prepared
in a proportionally spaced typeface using WordPerfect 11.0, in 12-point Century
Schoolbook font, with footnotes in 11-point Century Schoolbook font, and complies
with Federal Rules of Appellate Procedure 35(b)(2) and 40(b) in that the petition
contains 15 pages.
________________________
BRETT E. LEGNER
Assistant Attorney General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 814-2146
STATEMENT REGARDING DIGITAL VERSION
The digital version of the brief filed with this Court does not contain the
material included in the Separate Appendix because that material was not
available in non-scanned .pdf format.
________________________
BRETT E. LEGNER
Assistant Attorney General
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601
(312) 814-2146
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
PROOF OF SERVICE
The undersigned being first duly sworn upon oath, deposes and states that
two (2) copies of the foregoing 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, and one (1) copy of the SEPARATE APPENDIX and one
(1) electronic copy of said motion were served upon the below-named persons on
June 28, 2010, by depositing such copies in the United States mail at 100 West
Randolph Street, Chicago, Illinois, in an envelope bearing sufficient postage.
Despres Schwartz & Geoghegan, Ltd. Martin J. Oberman
Thomas H. Geoghegan Law Offices of Martin J. Oberman
Michael Persoon 122 South Michigan Avenue
77 West Washington Street, Suite 711 Chicago, Illinois 60603
Chicago, Illinois 60602
Scott J. Frankel Timothy W. Wright III
Frankel & Cohen Philip S. Holloway
77 West Washington Street, Suite 1720 Gonzalez, Saggio and Harlan, LLC
Chicago, Illinois 60602 35 East Wacker Drive, Suite 500
Chicago, Illinois 60601
______________________________
SUBSCRIBED and SWORN to before me
this 28th day of June, 2010.
___________________________________
NOTARY PUBLIC
Appendix
In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2219
GERALD A. JUDGE and DAVID KINDLER,
Plaintiffs-Appellants,
v.
PAT 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, Eastern Division.
No. 09 C 1231--John F. Grady, Judge.
ARGUED SEPTEMBER 17, 2009--DECIDED JUNE 16, 2010
Before ROVNER, WOOD, and TINDER, Circuit Judges.
WOOD, Circuit Judge. Constitutional specialists and U.S.
history buffs will recall that the original Constitution of
1787 took a cautious approach toward the election of
public officials. It interposed the Electoral College between
the voters and the President, U.S. CONST. art. II, § 1, and
it provided that each state's two senators would be
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
2 No. 09-2219
chosen by the state legislature, U.S. CONST. art. I, § 3.
"Judges of the supreme Court" were to be appointed by
the President, "by and with the Advice and Consent of
the Senate." U.S. CONST. art. II, § 2. Only the members of
the House of Representatives were to be "chosen . . . by the
People of the several States." U.S. CONST. art. I, § 2.
In 1913, the Seventeenth Amendment to the Constitution
effected a fundamental change in the legislative
branch of government by providing for the direct election
of senators. The amendment also changed the rules for
filling vacancies in a state's senatorial delegation. Under
the original Constitution, the executive authority of the
state could make a temporary appointment, which
would last until the next meeting of the legislature. The
Seventeenth Amendment modified that process, to
reflect the fact that, in principle, senators were to be
elected by the voters. The relevant language is as follows:
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.
U.S. CONST. amend. XVII para. 2. That passage may look
straightforward, but this appeal has demonstrated that
there is more to it than meets the eye. We must decide
whether the system that Illinois is using to fill a famous
vacancy in one of its senate slots has strayed so far
from the mark that a preliminary injunction should
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 3
have been entered by the district court. We conclude
that the district court did not abuse its discretion in
refusing the requested injunction, and we therefore
affirm its order.
I
A
Our case began after Barack Obama, then the junior
senator from Illinois, won the presidential election on
November 4, 2008. The next week, President-elect Obama
wrote to Rod Blagojevich, then the governor of Illinois,
announcing that the President-elect would resign his
position in the U.S. Senate, effective November 16, 2008.
Two years and 48 days remained in his six-year term at
the time of his resignation. The President-elect's resignation
created an immediate vacancy in one of Illinois's
two senate seats. On December 31, 2008, then-Governor
Blagojevich named Roland Burris, a former Attorney
General of Illinois, to assume the Obama seat. A certificate
of appointment signed by the governor said that the
appointment was to last "until the vacancy . . . caused by
the resignation of Barack Obama, is filled by election as
provided by law." Mr. Burris took the oath of office on
the Senate floor on January 15, 2009.
In the meantime, the Illinois House of Representatives
voted to impeach Governor Blagojevich; it returned
a wide-ranging article of impeachment alleging that the
governor had abused his powers, including his power to
appoint a U.S. Senator. On January 29, 2009, the Illinois
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4 No. 09-2219
Senate convicted Governor Blagojevich and relieved him
of duty. Lieutenant Governor Pat Quinn assumed the
office of Governor of Illinois.
B
Upon Senator Burris's taking office, David Kindler and
Gerald Judge, both registered voters in Illinois, sued
Governor Quinn under 42 U.S.C. § 1983, alleging a violation
of their rights guaranteed by the Seventeenth
Amendment to the U.S. Constitution. The plaintiffs
wanted the district court to declare the provisions in the
Illinois Election Code for filling U.S. Senate vacancies
unconstitutional and to issue an injunction requiring an
election to select the person to complete the Obama term.
In particular, they objected to the following part of the
Illinois Election Code:
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.
10 ILCS 5/25-8 (West 2010). According to this provision,
the date for the election to fill the Obama vacancy is set
for November 2, 2010. (Sixty-two days will elapse
between that day and the start of the 112th Congress on
January 3, 2011.) The plaintiffs argued that this provision
of the Illinois Election Code contravenes the second
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 5
paragraph of the Seventeenth Amendment by allowing
Senator Burris to serve as an appointee for an unreasonably
long period of time and by saying nothing about
Governor Quinn's duty to issue a writ of election. Governor
Quinn's continuing failure to issue a writ of election
(and Governor Blagojevich's failure to do so before him),
they asserted, violated the same constitutional command.
The primary relief that the plaintiffs originally requested
was an injunction requiring Governor Quinn to "issue a
writ for a special election to be conducted as soon as
practical to fill the vacancy."
Their motion for a preliminary injunction asked the
court to "order[] the Governor to comply with the Seventeenth
Amendment by issuing a writ setting an election
to fill the vacancy in the Senate seat, not in November,
2010, but at the earliest practical date." Governor
Quinn responded with a motion to dismiss, in which he
argued that neither his actions nor the Illinois Election
Code violated the federal Constitution. Senator Burris
submitted a brief in opposition to the complaint as well,
at which point the district court concluded that he was
a party that had to be joined under Federal Rule of
Civil Procedure 19. The plaintiffs obliged and added
him as a defendant.
At that point, the plaintiffs replied to both defendants'
motions to dismiss. In this filing, which the district court
construed as a reply brief for purposes of the motion for
a preliminary injunction, the plaintiffs advanced a new
argument: the Illinois statute violated the Seventeenth
Amendment because it denied the Illinois governor
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
6 No. 09-2219
discretion to decline to make a temporary appointment to
a vacant senate seat and to opt instead for an immediate
election. In addition, the plaintiffs clarified that they
were asking for an injunction "requiring the Governor to
issue a writ setting a date for a special election to fill
the vacancy in the Obama seat." But the details of their
request shifted substantially: instead of pressing for an
election at the earliest practical time, they now argued
that the election should occur "on a reasonable, but
relatively early date," or at a minimum, that "the Governor
must be ordered to exercise his discretion by acting to
set some date for a special election." (Emphasis added.)
On April 16, 2009, the district court granted the defendants'
motions to dismiss and denied the plaintiffs'
request for a preliminary injunction. The court refused to
consider the challenge to the Illinois Election Code that
the plaintiffs had introduced in their reply brief. It did,
however, dismiss the case without prejudice, allowing
the plaintiffs time to amend their complaint to present
that claim properly. The plaintiffs did so, but they also
appealed the district court's denial of their request for
a preliminary injunction. See 28 U.S.C. § 1292(a)(1).
II
Before turning to the central questions on appeal, we
must clarify what exactly is before us. Two of the claims
that the plaintiffs have advanced are not. First is the
argument that the plaintiffs raised for the first time in
their reply brief, to the effect that the Illinois statute is
unconstitutional because it requires the governor to make
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 7
a temporary appointment when a senate vacancy arises,
rather than "empowering" him to choose whether or not
to make such an appointment. The district court was
under no obligation to entertain this late submission, nor
should we. Spitz v. Tepfer, 171 F.3d 443, 448 (7th Cir. 1999).
Second is the initial contention that Governor Quinn is
under an obligation to order an election to fill the
vacancy that will take place as soon as possible. The
plaintiffs' briefs disavow any argument relating to the
timing of the election that they seek, and when we
pressed them at oral argument, they explicitly abandoned
this position.
More puzzling is whether we may consider the argument
that the plaintiffs do make before this court. The
plaintiffs take the position that Governor Quinn must
issue a writ of election fixing some date for an election to
fill Illinois's vacant senate seat, but they do not name a
date on which that election should take place. Both
sides agree that a writ of election must include a date on
which the election in question will occur. But the defendants
argue that the plaintiffs have waived the argument
that a writ must issue regardless of the election
date that it incorporates because the plaintiffs did not
develop the argument sufficiently before the district court.
E.g., Kunz v. DeFelice, 538 F.3d 667, 681 (7th Cir. 2008).
In this instance, we conclude that the defendants are
being too picky. The district court decided that the procedure
prescribed by the Illinois Election Code was all
that the Seventeenth Amendment required. It found that
Illinois law calls for an election to fill the vacancy at the
same time as the November 2, 2010, general election;
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
8 No. 09-2219
Governor Blagojevich appointed Senator Burris to serve
until an election took place, as provided by Illinois law;
and the total duration of the vacancy--roughly two
years, measured from Senator Obama's resignation
until the November 2010 general election--was not unreasonable
in light of Valenti v. Rockefeller, 292 F. Supp. 851
(W.D.N.Y. 1968), summarily aff'd, 393 U.S. 405 (1969) (per
curiam). The district court concluded that because the
plaintiffs could not show that the procedures set out in
the Illinois statute violated their constitutional rights, they
were not entitled to an injunction requiring Governor
Quinn to issue a writ of election calling for a special
election to take place prior to November 2010. The
court found it unnecessary to decide whether the Seventeenth
Amendment requires the governor to issue a writ
of election, even if it names November 2, 2010, as the
designated date.
We are satisfied that the plaintiffs have preserved
their right to argue that a writ of election is constitutionally
required. They presented this position both to
the district court and in this court. Their argument that
Governor Quinn must issue a writ calling for an election
to fill the senate vacancy on a date as soon as possible
encompasses the claim that the governor must issue a
writ of election. As they have asserted since the opening
line of their first complaint in the district court, "This is
an action . . . seeking to redress the ongoing violation of
the Seventeenth Amendment . . . by the failure of defendant,
as Governor of Illinois, to issue a writ for a special
election to fill a vacancy in the United States Senate."
Accordingly, we may consider whether the plaintiffs are
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 9
1 Any senator who completes his or her full six-year term
will serve in three Congresses. When Senator Obama first took
office on January 3, 2005, he joined the 109th Congress; at the
time he resigned in November 2008, the 110th Congress was
in its final days; the 111th Congress began on January 3, 2009,
and will end on January 3, 2011. Any claim concerning the
seven-week Obama vacancy in the 110th Congress is now moot.
entitled to a preliminary injunction ordering Governor
Quinn to issue a writ of election calling for an election
specifically to fill out the remainder of President Obama's
term in the 111th Congress (rather than an election to
choose the junior senator from Illinois for the 112th Congress).
1
III
One more preliminary matter must be addressed
before we turn to the main event: the defendants argue
that the plaintiffs lack standing to pursue the injunctive
relief that they seek. This is the case, the defendants say,
because the only injury that the plaintiffs allege is the
inability to hold the Illinois governor, rather than the
state legislature, accountable for setting the date of the
election for the vacancy. The defendants assert that this
injury is not sufficiently concrete or specific to the plaintiffs
to invoke the jurisdiction of the federal courts.
Article III of the Constitution limits federal judicial
power to the resolution of cases and controversies. Hein
v. Freedom from Religion Found., Inc., 551 U.S. 587, 597-98
(2007). Standing rules implement this limitation. Elk Grove
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
10 No. 09-2219
Unified School Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). A
plaintiff satisfies constitutional standing requirements
by showing that the challenged action of the defendant
caused an "injury in fact" that is likely to be redressed by
a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-62 (1992). The alleged injury must be concrete
and particularized, and either actual or imminent. Massachusetts
v. EPA, 549 U.S. 497, 517 (2007).
The plaintiffs allege that Governor Quinn's failure to
issue a writ of election will injure them because without
a writ of election, an election to fill the senate vacancy
left by President Obama will never take place--not on
November 2, 2010, or any other date. The plaintiffs
argue that, if things remain as they are now, Senator Burris
will serve until the next Congress begins on January 3,
2011, at which time an entirely new term for one of Illinois's
senators will begin. The State of Illinois appears to
agree that this will be the practical effect of the state's
system. In an opinion letter to leaders in the Illinois
legislature, Illinois Attorney General Lisa Madigan wrote:
"Under the current language of [10 ILCS 5/25-8], U.S.
Senator Burris's temporary appointment will conclude
in January 2011 following an election in November
2010, the next election of representatives in Congress."
Senatorial Vacancy under the Seventeenth Amendment,
2009 Op. Ill. Att'y Gen. No. 09-001, 2009 WL 530827 (Ill.
A.G. Feb. 25, 2009). In addition, the Illinois State Board of
Elections's current list of offices that will appear on the
November 2, 2010, ballot in Illinois does not specify that
there will be an election on that date to fill the balance
of President Obama's senate term. See State of Illinois
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 11
Candidate's Guide 2010, at i, available at http://www.
elections.state.il.us/Downloads/ElectionInformation/
PDF/2010Canguide.pdf (last visited June 15, 2010). This
evidence suggests that without a writ of election calling
for an election to fill the Obama vacancy, the plaintiffs
will not have an opportunity to elect a replacement
senator.
It is clear enough that the plaintiffs' alleged injury is
traceable to Governor Quinn's conduct and would be
redressed by a favorable decision. The district court, for
example, could prevent the injury by granting an injunction
requiring Governor Quinn to issue a writ of election
to supply a replacement senator for the fast-waning
Obama term, rather than for the new Congress. The
more substantial issue is whether the plaintiffs have
identified an "injury in fact" that is sufficient for purposes
of standing.
The essence of the plaintiffs' claim is their attempt to
vindicate their right to vote for the replacement senator,
rather than have someone appointed by either an
executive or legislative actor. This is precisely what the
Seventeenth Amendment is all about. The first paragraph
says that the Senate "shall be composed of two Senators
from each State, elected by the people thereof" and fixes
the qualifications for electors participating in senatorial
elections. U.S. CONST. amend. XVII para. 1. The second
paragraph implements the general principle of the first
for any vacancies that may arise. Initially, it seems to call
exclusively for elections to fill vacancies, where it says
that "the executive authority of [the] State shall issue writs
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
12 No. 09-2219
of election to fill such vacancies." But then it adds a
proviso permitting "temporary" appointments by the
executive "until the people fill the vacancies by election
as the legislature may direct." U.S. CONST. amend. XVII
para. 2. The plaintiffs here believe that Illinois has exceeded
whatever authority it may have under the proviso.
The Supreme Court has recognized that plaintiffs have
standing to sue when they allege that state election procedures
violate their right to vote under the Seventeenth
Amendment. In Gray v. Sanders, which involved such a
challenge to Georgia's primary-election laws, the Court
emphasized the long-standing rule that "any person
whose right to vote is impaired . . . has standing to sue."
372 U.S. 368, 375 & n.7 (1963) (citing Baker v. Carr, 369 U.S.
186, 204-08 (1962); Smith v. Allwright, 321 U.S. 649 (1944);
Ashby v. White, (1703) 2 Ld. Raym. 938, 953-56 (K.B.)). In
addition, Valenti v. Rockefeller, supra, a case summarily
affirmed by the Supreme Court, concluded that "plaintiffs
alleging that their right to vote to fill a Senate vacancy
will be curtailed[] have sufficient standing to maintain
this action." 292 F. Supp. at 853 n.1.
It is instructive to compare the procedures adopted in
the Seventeenth Amendment to those in the original Constitution
for filling vacancies in the House of Representatives.
Article I, Section 2 says: "When vacancies happen
in the Representation from any State, the Executive Authority
thereof shall issue Writs of Election to fill such
Vacancies." U.S. CONST. art. I, § 2, cl. 4. In Jackson v. Ogilvie,
Illinois voters alleged that the governor had to issue a
writ of election calling for an election to fill a vacant seat
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No. 09-2219 13
in the House, and this court upheld their standing to
sue for a deprivation of their right to elected representation.
426 F.2d 1333, 1335 (7th Cir. 1970). We see no reason
to treat the current plaintiffs' alleged injury differently.
They assert that the governor's failure to issue a writ of
election will deny them their right to vote under the
Seventeenth Amendment, and their lawsuit represents
an effort to prevent interference with that right. This is
enough to establish that plaintiffs have been injured in
fact and that they have a concrete stake in the outcome of
the litigation. See, e.g., Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000).
This case does not present a "generalized grievance" so
widely shared that the political process provides a
more appropriate remedy for the plaintiffs. See Federal
Election Comm'n v. Akins, 524 U.S. 11, 23-25 (1998); Warth
v. Seldin, 422 U.S. 490, 499-500 (1975). 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." See, e.g.,
Department of Commerce v. U.S. House of Representatives, 525
U.S. 316, 331-32 (1999); Akins, 524 U.S. at 23-25; Baker,
369 U.S. at 207-08. In this case, the plaintiffs "are asserting
'a plain, direct and adequate interest in maintaining the
effectiveness of their votes,' . . . not merely a claim of
'the right possessed by every citizen to require that the
government be administered according to law.' " Baker, 369
U.S. at 208 (quoting Coleman v. Miller, 307 U.S. 433, 438
(1939), and Fairchild v. Hughes, 258 U.S. 126, 129 (1922),
respectively) (internal quotation marks omitted). Bearing
in mind that "[n]o right is more precious in a free country
than that of having a voice in the election of those who
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14 No. 09-2219
make the laws under which, as good citizens, we must
live," Wesberry v. Sanders, 376 U.S. 1, 17 (1964), we
conclude that the plaintiffs have alleged a concrete and
specific injury that is neither conjectural nor hypothetical,
and thus they may proceed with their action.
IV
We turn at last to the merits of the interlocutory
appeal from the denial of injunctive relief. To justify a
preliminary injunction, the plaintiffs must show that they
are likely to succeed on the merits, that they are likely to
suffer irreparable harm without the injunction, that the
harm they would suffer is greater than the harm that the
preliminary injunction would inflict on the defendants,
and that the injunction is in the public interest. Winter v.
Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008);
St. John's United Church of Christ v. City of Chicago, 502
F.3d 616, 625 (7th Cir. 2007). These considerations are
interdependent: the greater the likelihood of success on
the merits, the less net harm the injunction must prevent
in order for preliminary relief to be warranted. Hoosier
Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582
F.3d 721, 725 (7th Cir. 2009). In this case, as in many, the
primary reason why the court denied preliminary relief
was its assessment of the plaintiffs' likelihood of success
on the merits. Accordingly, we begin our discussion
there, before turning to the other considerations.
As we noted earlier, the only question properly before
us is whether the plaintiffs' assertion that Illinois's governor,
by command of the Seventeenth Amendment, must
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No. 09-2219 15
issue a writ setting an election to fill the Obama vacancy
is well taken. Implicit in this inquiry is a practical consideration:
must Illinois law somehow assure that the
date of such an election is set so that the vacancy is
filled some time before the commencement of the 112th
Congress? In order to answer this question, we turn to
the language of the Seventeenth Amendment, to decide
whose reading--the plaintiffs' or the state's--is better
founded.
A
Although we have already quoted the second paragraph
of the Seventeenth Amendment in full, we set it
out again here, identifying this time each of the critical
phrases:
[1] When vacancies happen in the representation of
any State in the Senate, [2] the executive authority of
such State shall issue writs of election to fill such
vacancies: Provided, [3] That the legislature of any
State may empower the executive thereof to make
temporary appointments until the people fill the
vacancies by election [4] as the legislature may direct.
U.S. CONST. amend. XVII para. 2. The first two phrases
appear in what we will call "the principal clause," and the
last two in what we will call "the proviso." In interpreting
this text, we have taken care not to lose sight of the fact
that the provisions for filling vacancies immediately
follow the amendment's central command that henceforth
the two senators from each state must be chosen by
popular election.
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16 No. 09-2219
1. The Principal Clause.
The first part of the principal clause states a condition: a
vacancy must "happen" in "the representation of any
State in the Senate." We need not tarry here, as there is no
question that the President-elect's resignation on November
16, 2008, caused a vacancy to "happen."
The second part of the principal clause does two jobs: it
delegates responsibility for addressing the vacancy to "the
executive authority" of the affected state, and it tells the
executive what to do--that is, to issue a writ of election
and thereby assure that the replacement senator will,
like the original one, be popularly elected. This clause
uses the word "shall," which is normally understood as
mandatory language. See, e.g., Lopez v. Davis, 531 U.S. 230,
241 (2001); Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26, 35 (1998); but see BRYAN A. GARNER, A
DICTIONARY OF MODERN LEGAL USAGE 939-41 (2d ed. 1995)
(discussing "words of authority" and arguing that "shall"
is inherently ambiguous).
Reading the second part of the principal clause to
impose a mandatory obligation on the state executive
has the virtue of ensuring consistency between this provision
and the counterpart language addressing vacancies
in the House of Representatives. In this respect, the text of
the Seventeenth Amendment is functionally identical to
Article I, Section 2 of the Constitution, which governs
elections to fill vacant seats in the House of Representatives.
Compare U.S. CONST. amend. XVII, with U.S. CONST.
art. I, § 2, cl. 4. The drafting history of the Seventeenth
Amendment reveals that this was no accident. Senator
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No. 09-2219 17
Joseph Bristow, who proposed the language that was
approved by the 62nd Congress and ratified by the
states as the Seventeenth Amendment, identified this
similarity when he explained his proposed amendment
to the Senate. 47 CONG. REC. 1482-83 (May 23, 1911).
(Senator Bristow's comments are the only substantive
discussion of the text of the Seventeenth Amendment's
vacancy-filling provision in the legislative history of the
amendment's passage in Congress.) In Jackson v. Ogilvie,
supra, this court concluded that the language of the House
vacancy-filling provision in Article I, Section 2 was
"mandatory according to the ordinary meaning of its
terms. . . . [I]t renders the issuing of the writs an indispensable
duty." 426 F.2d at 1336 (internal citation and quotation
marks omitted). Both Article I, Section 2 and part 2 of the
Seventeenth Amendment's principal clause command the
responsible state official to call an election in which the
people can select a replacement senator or representative,
should a vacancy arise. We read this language as a
mandatory requirement in Jackson v. Ogilvie, and we see
no reason to take a different approach here for purposes
of the Seventeenth Amendment.
2. The Proviso.
If the Seventeenth Amendment ended with the principal
clause, our task would be over. But it did not. Instead,
it added a proviso that permits temporary appointments
to the Senate for the period before an election takes
place. As the district court observed, the vacancy-filling
provision in Article I, Section 2 "does not contain anything
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18 No. 09-2219
comparable to the Seventeenth Amendment's proviso."
The House vacancy provision begins and ends with the
imposition of a mandatory duty to call an election for
the vacancy. We must therefore consider how the proviso
interacts with the principal clause, and then look at the
specific system that Illinois has adopted to fulfill its
responsibilities.
a. Temporary Appointment Power. It should come as
no surprise that the drafters of the Seventeenth Amendment
contemplated a role for temporary appointments
when senate seats were left unoccupied. A similar provision
addressing vacancies in the Senate appears in the
unamended Constitution. As originally ratified, the
Constitution provided, "[I]f Vacancies happen [in the
Senate] by Resignation, or otherwise, during the Recess
of the Legislature of any State, the Executive thereof may
make temporary Appointments until the next Meeting
of the Legislature, which shall then fill such Vacancies."
U.S. CONST. art. I, § 3, cl. 2. There was some concern
during the 1787 Convention and at one state's ratifying
convention that this executive appointment power was
unwise and unnecessary. See 5 DEBATES ON THE ADOPTION
OF THE FEDERAL CONSTITUTION 395 (J. Elliot ed., 1845)
[hereinafter ELLIOT'S DEBATES] (remarks of James Wilson);
1 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 330 (J. Elliot ed.,
2d ed. 1836) (declaration of New York upon the ratification
of the Constitution). Proponents of executive appointment
power prevailed, however, by arguing that appointments
were "necessary, in order to prevent inconvenient
chasms in the Senate," which would occur because state
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No. 09-2219 19
legislatures met infrequently. Such "chasms," they urged,
might become problematic if they were to last too long,
considering the great power of the Senate. 5 ELLIOT'S
DEBATES 395 (remarks of Edmund Randolph). Moreover,
the extra authority to ensure that vacancies in the
Senate were filled promptly reflected the Constitution's
broader concern that the states maintain equal representation
in the Senate. E.g., U.S. CONST. art. V ("[N]o
State, without its Consent, shall be deprived of its equal
Suffrage in the Senate.").
The language of the Seventeenth Amendment's proviso
follows the same pattern as the original executive appointment
provision that the Framers placed in Article I,
Section 3. Comparing the language of these two provisions
in 1911, Senator Bristow concluded that the
proviso "is practically the same provision which now exists
in the case of such a vacancy." 47 CONG. REC. 1483 (May 23,
1911). The identity of language in the two provisions
supports the idea that the drafters of the Seventeenth
Amendment intended to preserve, through the executive
appointment power, the states' ability to maintain
their representation in the Senate until the group
charged with selecting a permanent replacement could
exercise its constitutional role. Under both the original
and the amended Constitution, the group charged with
selecting a permanent replacement--whether the state
legislature or the people--was the same one charged with
selecting senators in the first place.
b. Contours of the Appointment Power. As we explained
earlier, we need not, and do not, address
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20 No. 09-2219
2 The plaintiffs suggest that Valenti has no precedential force
whatever because the Supreme Court summarily affirmed the
district court's decision on grounds that the case was moot.
We need not address this point, given our resolution of this
(continued...)
several issues here that the plaintiffs either have not
raised or have forfeited. We flag them now only for the
purpose of clarifying what is included, and what
excluded, from our present ruling. First, we have no
occasion to say anything about the proviso's directive
that the state legislature may "empower" the executive
to make temporary appointments. This capacity to "empower"
raises questions about the role of the state legislature
compared to that of the state executive in
the appointment process.
In addition, we do not have before us any properly
presented question about how long a temporary appointment
may last under the Seventeenth Amendment, nor
the closely related question how much time can elapse
between the start of a vacancy and an election to fill it.
On the latter point, the parties have discussed the threejudge
district court opinion in Valenti v. Rockefeller, supra,
which considered whether a 29-month wait for an
election to fill the vacancy left by the assassination of
Senator Robert F. Kennedy violated the terms of the
Seventeenth Amendment. 292 F. Supp. 851. That court
decided that the lapse in time did not offend the Seventeenth
Amendment, and the Supreme Court summarily
affirmed. When all is said and done, this leaves us
without firm guidance from the Supreme Court.2 See
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No. 09-2219 21
2 (...continued)
case. They may, however, be overreaching, considering the fact
that the Court itself has discussed aspects of Valenti in dicta. See
Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10-11 (1982);
see also Lynch v. Illinois State Bd. of Elections, 682 F.2d 93, 96-97
(7th Cir. 1982).
Anderson v. Celebrezze, 460 U.S. 780, 784-85 n.5 (1983)
("[T]he precedential effect of a summary affirmance
extends no further than the precise issues presented and
necessarily decided by those actions.") (internal quotation
marks omitted).
As we noted, the plaintiffs have dropped their argument
that Governor Quinn must issue a writ fixing the
soonest possible date for a special election. They have
pressed only the more modest claim that he has a duty
to issue a writ of election that fixes a particular date for
the election to fill the vacancy. Valenti had nothing to say
about that issue. Indeed, Valenti could not have decided
that question, because before the three-judge district
court issued its opinion in the case, Governor Nelson
Rockefeller made an appointment to Senator Kennedy's
vacant seat and issued "a writ of election . . . for the
November 1970 election to fill the vacancy for the remainder
of the unexpired term (December 1, 1970, to January 3,
1971)." Motion on Behalf of Appellee to Dismiss or Affirm
at 4, Backer v. Rockefeller, 393 U.S. 404 (1969) (No. 852)
(companion case to Valenti v. Rockefeller, 393 U.S. 405 (1969)
(No. 773)).
c. "As the legislature may direct." The proviso presents
one final interpretive issue. The second paragraph, in
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22 No. 09-2219
Part 4 as we have numbered it above, ends with the
phrase "as the legislature may direct." We must decide
which part of the amendment is modified by that phrase:
the entire second paragraph, the entire proviso, or just
the immediate antecedent of that final phrase.
It is relatively easy to dismiss the first of those possibilities.
The grammatical acrobatics that would be necessary
to read "as the legislature may direct" to modify the
words "shall issue writs of election" are difficult to imagine.
This would entail a conclusion that the phrase "as
the legislature may direct" modifies everything in the
entire paragraph--the power to issue writs of election,
the power to make temporary appointments, and the
power to schedule elections to fill vacancies. There is
certainly nothing in the amendment that would warrant
a restriction to one or more of those. The principal clause
of the amendment designates the executive authority as
the authorized actor, and the writ of election as the appropriate
means for filling a vacancy. There is not a word
about the state legislature, even though the Congress
that drafted the amendment was consciously changing
the system from one that was in the hands of the legislature
to a new one. We do not believe that the same Congress
would have re-introduced the state legislature
through such a back-door mechanism.
The plaintiffs suggest two readings, but both of their
interpretations also create problems. The first one involves
treating the final phrase as something that addresses
the entire proviso--in particular, as authorization for the
state legislature to regulate directly the duration of the
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 23
executive's temporary appointment. But this approach
creates a redundancy. It would require reading the
proviso as saying "the legislature of any State may empower
the executive thereof to make temporary appointments
as the legislature may direct." Second, and somewhat
closer to the mark, the plaintiffs suggest that the
phrase modifies only the word "election" that immediately
precedes it, but that somehow the timing of the election
is excluded from the legislature's power. That would be
interesting if there were some textual support for it, but
there is none. We decline to read a limitation into
the Seventeenth Amendment that is not there.
We conclude, therefore, that the phrase "as the legislature
may direct" is best read as a straightforward modification
of the directly preceding term "election." Any
other construction upsets normal rules of English grammar,
including the " 'rule of the last antecedent,' according
to which a limiting clause or phrase (here, ['as the legislature
may direct']) should ordinarily be read as modifying
only the noun or phrase that it immediately follows
(here, ['election'])." Barnhart v. Thomas, 540 U.S. 20, 26
(2003) (our modifications). Accordingly, in addition to
establishing the rule that state legislatures may "empower"
state executives to make temporary appointments
when vacancies arise, the proviso gives the state
legislature the power to direct the "election" in which "the
people fill the vacanc[y]." We note, before moving on, that
the power of state legislatures to regulate elections to fill
vacancies in the Senate is not established by the second
paragraph of the Seventeenth Amendment alone. To the
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24 No. 09-2219
contrary, the Elections Clause in Article I, Section 4 of the
Constitution instructs the states to prescribe "[t]he Times,
Places and Manner of holding Elections for Senators and
Representatives," subject to Congress's power to
override those regulations. U.S. CONST. art. I, § 4, cl. 1. We
return below to the importance of the Elections Clause
to our understanding of the Seventeenth Amendment's
vacancy-filling provision.
3. The Proviso's Relationship with the Principal
Clause.
Next, we must consider how the authorization in the
proviso for temporary, executive appointments to the
Senate interacts with the principal clause's language
indicating that the executive's job is simply to issue
writs of election enabling the people to fill senate vacancies.
The first issue is whether the proviso is better read
as an alternative to the mandate set out in the principal
clause, or as an elaboration on the process described in
that clause. If it offers an alternative, then there is no
doubt that the Illinois General Assembly has exercised
its authority in this respect. If it is an elaboration, then
we must decide how to reconcile the fact that the
proviso authorizes the state legislature to "direct" the
details of the election for the vacancy, while the
principal clause requires the executive to issue a writ of
election, which is a document that normally would
specify the date on which the election in question will
take place.
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No. 09-2219 25
a. Alternative or Elaboration? The defendants would
like us to rule that the principal clause and proviso are
"two distinct paths to fill a Senate vacancy." They take the
position that when a state legislature (exercising its
power under the proviso) empowers the governor to
make a temporary appointment and provides for an
election, the legislature supplants any role that the executive,
the principal clause, or the writ of election might
have played. The plaintiffs, on the other hand, argue
that the proviso has no bearing on the duty mandated by
the principal clause. They view the proviso as a supplemental
procedure that does nothing more than permit
the state legislature to empower the governor to make a
temporary appointment until a vacancy election occurs.
While courts have long recognized that "[t]he general
office of a proviso is to except something from the
enacting clause, or to qualify and restrain its generality,"
United States v. Morrow, 266 U.S. 531, 534 (1925), "its
general (and perhaps appropriate) office is not, alas, its
exclusive use," Republic of Iraq v. Beaty, 129 S. Ct. 2183, 2190
(2009). In some situations, a proviso will " 'state a general,
independent rule.' " Id. (quoting Alaska v. United States, 545
U.S. 75, 106 (2005)). To identify how the proviso in the
Seventeenth Amendment functions, it is best to begin by
reading the second paragraph as a whole, giving the
language "such construction as will permit both the
enacting clause and the proviso to stand and be
construed together with a view to carry into effect the
whole purpose of the law." American Airlines, Inc. v. Civil
Aeronautics Bd., 178 F.2d 903, 906-07 (7th Cir. 1949) (quoting
White v. United States, 191 U.S. 545, 551 (1903)).
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26 No. 09-2219
The most natural reading of the second paragraph, in
our view, leads to the conclusion that the proviso
qualifies the principal clause; it does not provide a freestanding
alternative. The drafting and ratification
history of the amendment supports this interpretation.
See, e.g., 47 CONG. REC. 1483 (May 23, 1911) (Senator
Bristow, during the debates in Congress over the Seventeenth
Amendment, remarked, "My amendment provides
[in the proviso] that the legislature may empower
the governor of the State to appoint a Senator to fill a
vacancy until the election occurs, and he is directed by
this amendment [in the principal clause] to 'issue writs of
election to fill such vacancies.' ") (emphasis added); 2 JOHN
BOUVIER, A LAW DICTIONARY 483 (15th ed. 1891) ("A
proviso differs from an exception . . . . An exception
exempts, absolutely, from the operation of an engagement
or an enactment; a proviso defeats their operation,
conditionally."). The principal clause describes a chain of
events: when a vacancy happens, the state executive
issues a writ of election, which calls for an election in
which the people will fill the vacancy. The proviso
qualifies this chain of events by permitting an appointee
to intercede temporarily between the start of the vacancy
and the election that permanently fills that vacancy.
b. Reconciling the Proviso and the Principal Clause.
Once we understand the proviso as a qualification of,
rather than an alternative to, the principal clause, we
must consider how the command that the state executive
"shall issue writs of election to fill . . . vacancies" in the
principal clause coexists with the proviso's authorization
for vacancy elections to take place "as the legislature
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No. 09-2219 27
may direct." By its reference to the writ of election, the
principal clause invokes a well-established mechanism
for ensuring that elections take place. The proviso's
statement that the "legislature may direct" vacancy
elections calls to mind the role of the state legislatures
under the Elections Clause of the Constitution. Once
these background principles are understood, the two
clauses of the Seventeenth Amendment's vacancy-filling
provision are easily reconciled.
i. The Principal Clause and Writs of Election. While the
writ of election is less famous than the other writ mentioned
in the Constitution, U.S. CONST. art. I, § 9, cl. 2 (the
"Writ of Habeas Corpus"), it too has a well-established
role. The writ of election had long been a predicate to
English parliamentary elections. See, e.g., 2 THE CORRESPONDENCE
OF HENRY HYDE, EARL OF CLARENDON 226 n.*
(Samuel Weller Singer ed., 1828) (quoting 3 F. A. J. MAZURE,
HISTOIRE DE LA RÉVOLUTION DE 1688, EN ANGLETERRE 264-
65 (1825)) (explaining that King James II attempted to
prevent parliamentary elections during the Glorious
Revolution by withholding the writ). As the power of the
monarch subsided over time, issuance of the writ of
election became an increasingly ministerial duty. Still, even
today, the writ triggers elections in Britain. See Representation
of the People Act, 1983, c. 2, § 23 & sched. 1, pt. 1, § 1.
The role of the writ of election is also apparent in the
history of American elections. From the start, the U.S.
Constitution has included the requirement that state
executives "issue Writs of Election" whenever there is a
vacancy in the House. U.S. CONST. art. I, § 2, cl. 4. The
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28 No. 09-2219
Framers naturally would have viewed the writ as the
proper device for initiating an election because the state
constitutions referred to writs of election as the exclusive
mechanism for filling vacant elected offices. See, e.g., ILL.
CONST. of 1818, art. II, § 11; see also DEL. CONST. of 1776,
art. 5; GA. CONST. of 1777, art. VII; N.C. CONST. of 1776,
art. X; The Northwest Ordinance para. 10, July 13, 1787,
1 Stat. 51 (1789). At the time that the states ratified the
Seventeenth Amendment, many states' laws required
state executives to issue writs of election to fill vacancies
in elected offices. In Illinois, for example, writs of election
were required to call vacancy elections for every county
and statewide office, as well as the office of U.S. Representative.
See ILL. CONST. of 1870, art. IV, § 2; An Act in
Regard to Elections, and to Provide for Filling Vacancies
in Elective Offices, 1871-72 Ill. Laws, at 400-01, §§ 127-
133. Today, the writ of election retains its essential place
in state election procedure. See 10 ILCS 5/2A-4 (West
2010); 10 ILCS 5/2A-9(a-5) (West 2010); 10 ILCS 5/25-4
(West 2010); 10 ILCS 5/25-7 (West 2010); see also, e.g.,
FLA. STAT. ANN. § 100.161 (West 2008); R.I. GEN. LAWS
§ 17-4-9 (2003); WASH. REV. CODE ANN. § 29A.28.041(2)
(West Supp. 2010).
Importantly, at the time that the Seventeenth Amendment
was drafted, it was settled that the state executive's
power to issue a writ of election carried with it the
power to establish the time for holding an election, but
only if the time had not already been fixed by law. See
GEORGE W. MCCRARY, A TREATISE ON THE AMERICAN LAW
OF ELECTIONS 166 (2d ed. 1880); Case XXIII, John Hoge
of Pennsylvania, Committee of Elections, 8th Cong. (1804),
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No. 09-2219 29
reprinted in CASES OF CONTESTED ELECTIONS IN
CONGRESS, FROM THE YEAR 1789 TO 1834, at 135 (M. St. Clair
Clarke & David A. Hall eds., 1834). Even when the time
of a vacancy election is fixed by law, however, the writ
plays the important administrative role of authorizing
state officials to provide for the myriad details necessary
for holding an election (printing ballots, locating voting
places, securing election personnel, and so on).
ii. The Proviso and the Elections Clause. The notion that
state legislatures play an essential role in promulgating
the law that governs congressional elections also has
deep roots. There is now a body of federal law that concerns
congressional elections, e.g., 2 U.S.C. §§ 1-9, but
the states continue to control many aspects of federal
elections. This is consistent with the proviso in the Seventeenth
Amendment. The phrase "as the legislature may
direct" affirms that the amendment was not intended to
change the Elections Clause of the original Constitution,
U.S. CONST. art. I, § 4, cl. 1; after all, the Seventeenth
Amendment, as a later enactment, might have modified
it. Under the Elections Clause, the states have " 'broad
power' to prescribe the procedural mechanisms for
holding congressional elections," Cook v. Gralike, 531 U.S.
510, 523 (2001) (quoting Tashjian v. Republican Party of
Connecticut, 479 U.S. 208, 217 (1986)), limited only by
Congress's power to "make or alter such Regulations," U.S.
CONST. art. I, § 4, cl. 1; Buckley v. Valeo, 424 U.S. 1, 131-32 &
n.174 (1976). But the Elections Clause does not just empower;
it "expressly requires action by the States" when it
comes to regulations for congressional elections. U.S. Term
Limits v. Thornton, 514 U.S. 779, 804-05 (1995); accord id.
at 862-63 (Thomas, J., dissenting).
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30 No. 09-2219
3 In both the 61st Congress, where the Senate narrowly defeated
a proposed amendment, and the 62nd Congress, which ultimately
passed the amendment, the debate over federal control
of senatorial elections commanded significant attention. See,
e.g., 46 CONG. REC. 847-48 (Jan. 13, 1911) (Sen. Sutherland); id. at
1161-69 (Jan. 20, 1911); id. at 1335-39 (Jan. 24, 1911) (Sen. Depew);
id. at 2426-27 (Feb. 13, 1911) (Sen. Curtis); id. at 2491-98 (Feb. 14,
1911) (Sens. Bourne and Brown); id. at 2645-57 (Feb. 16, 1911)
(debate between Sens. Sutherland and Borah); id. at 2756-63
(Feb. 17, 1911) (Sen. Rayner); id. at 3307 (Feb. 24, 1911) (Senate
approves amendment retaining federal oversight of senatorial
elections); 47 CONG. REC. 203-43 (Apr. 13, 1911) (House debate
on proposed amendment); id. at 1482-90 (May 23, 1911) (Senate
debate on Sen. Bristow's proposal); id. at 1879-1925 (June 12,
1911) (Senate debate on proposed amendment); id. at 1884-1924
(June 12, 1911) (Sen. Bacon's opposition to federal control); 48
CONG. REC. 6347-69 (May 13, 1912) (passage of proposed
amendment through Congress). See generally JOSEPH L. BRISTOW,
(continued...)
The balance between the states' power and that
of Congress to regulate congressional elections was a
substantial issue when the Constitution was being
drafted, see 5 ELLIOT'S DEBATES 401-02; THE FEDERALIST
No. 59 (Hamilton), and it remained a contentious topic
more than a century later as the Seventeenth Amendment
worked its way through Congress. In fact, with the exception
of the principal question whether the people
should directly elect senators, no issue was more hotly
debated than whether the states should control
senatorial elections exclusively or Congress should
retain a role.3 In all of the legislative history related to the
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 31
3 (...continued)
RESOLUTION FOR THE DIRECT ELECTION OF SENATORS, S. DOC.
NO. 62-666, at 7-8 (1912); 1 GEORGE H. HAYNES, THE SENATE
OF THE UNITED STATES: ITS HISTORY AND PRACTICE 106-115 (1938);
1 ROBERT C. BYRD, THE SENATE, 1789-1989: ADDRESSES ON THE
HISTORY OF THE UNITED STATES SENATE, S. DOC. NO. 100-20, at
389-406 (1988). The question of federal control over senatorial
elections left the Senate evenly divided, and it took the vote
of Vice President James Sherman to decide the question in
favor of retaining a role for federal oversight. See 47 CONG. REC.
1923 (June 12, 1911). The issue kept the proposed amendment
tied up in a Conference Committee of the House and Senate
for nearly a year. Senators by Direct Vote Passes House, N.Y.
TIMES, May 14, 1912, at 1.
passage of the Seventeenth Amendment, however, no
member of Congress ever expressed doubt that state
legislatures were the central actors when it came to
passing laws that governed the election of senators.
The plaintiffs are correct that neither the proviso of the
Seventeenth Amendment nor the Elections Clause overrides
the duty of the state's executive to issue a writ of
election when a vacancy occurs. It does not necessarily
follow, however, that the executive's power to issue a
writ of election includes the power to select any election
date whatsoever. What is clear is that traditional writs
of election always include a date. At the same time, the
state legislature may pass laws that establish a range of
dates from which the state executive may choose, and
might even limit that set to a single day. In this way, the
state executive's duty to issue a writ of election that
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
32 No. 09-2219
includes a date for the election is constrained by, but not
replaced by, the state legislature's obligation to direct
elections to fill vacancies.
A recent example from Illinois illustrates this division
of power. When Representative Rahm Emanuel resigned
his seat in the House of Representatives on January 2, 2009,
to become President Obama's Chief of Staff, he left a
vacancy. Governor Blagojevich then issued a writ of
election commanding the clerk of the county encompassing
the affected congressional district "to cause a
SPECIAL ELECTION to fill such vacancy . . . on TUESDAY,
April 7, 2009." The Illinois law that governs vacancies in
the House provides a range of dates within which a
vacancy election must occur, and Governor Blagojevich's
writ of election incorporated a date within that range. See
10 ILCS 5/25-7 (requiring the Illinois governor, under these
circumstances, to choose a day "within 115 days"). This
reflects a common pattern. See, e.g., MASS. ANN. LAWS
ch. 54, § 140(a) (LexisNexis Supp. 2010) (effective Dec. 23,
2009) (requiring the governor, in some circumstances, to
issue precepts fixing a date for a vacancy election between
145 and 160 days after the vacancy occurs); WASH.
REV. CODE ANN. § 29A.28.041(2) (giving the executive
discretion, in some circumstances, to pick any date for
the vacancy election more than 90 days later than the
date that the writ issues).
Read as a whole, therefore, the second paragraph
of the Seventeenth Amendment sets up a system
under which the principal clause and proviso assign
complementary roles to the state's executive and legisla-
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 33
tive authorities in the process of filling senate vacancies.
Nothing about the state legislature's power to direct
the election to fill a vacancy qualifies or nullifies the
executive's duty to issue writs of election.
4. Filling Vacancies under the Seventeenth Amendment.
To summarize, the vacancy-filling provision in the
second paragraph of the Seventeenth Amendment
imposes two requirements. 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 appointee,
as permitted by the proviso, is 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.
State law controls the timing and other procedural
aspects of vacancy elections. The Elections Clause obliges
the states to make these rules, and the final phrase of
the Seventeenth Amendment's second paragraph
reaffirms this role. The state legislature's power to
make laws governing vacancy elections is limited by
Congress's power under the Elections Clause to "make
or alter" such regulations. To the extent that the plaintiffs
argue that the governor must be able to select a date
for the vacancy election of his own choosing, they are
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
34 No. 09-2219
incorrect. The amendment does not disturb the power
of the state legislature to confine the governor's discretion
in selecting a date.
If the state legislature has exercised that power, then
the state executive must name a date consistent with the
state's law in the writ of election. In such a circumstance,
the writ still has a critical role: it announces to the
voters the time and place of the election; it sees that the
electoral machinery is engaged; and it guarantees that
an election for the vacancy will actually take place on
the date directed. Where state law leaves room for executive
discretion (as was the case when Representative
Emanuel resigned), the executive may select a date
within the authorized range. As a result, the defendants'
position that the duty of setting a date for the vacancy
election is entirely the prerogative of the state legislature
is somewhat misleading. If the state legislature leaves a
measure of discretion over the timing of a vacancy
election to the state executive, the state executive may
exercise that discretion.
So understood, the second paragraph of the Seventeenth
Amendment establishes a rule for all circumstances: it
imposes a duty on state executives to make sure that an
election fills each vacancy; it obliges state legislatures to
promulgate rules for vacancy elections; and it allows for
temporary appointments until an election occurs. This
demarcation of constitutional powers and duties between
state executives and state legislatures advances the Seventeenth
Amendment's primary objective of guaranteeing
that senators are selected by the people of the states
in popular elections.
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 35
B
This rather extended look at the underlying merits of
the plaintiffs' claim has been necessary in order to
evaluate their likelihood of success, as it bears on the
district court's decision not to grant a preliminary injunction.
As the case now stands, the plaintiffs take
the position that the Seventeenth Amendment requires
Governor Quinn to issue a writ of election calling an
election to fill President Obama's vacancy in the Senate,
and the state is arguing that he is under no such obligation.
Our analysis of the Seventeenth Amendment convinces
us that the plaintiffs have shown a strong likelihood
of success on the merits. The governor has a duty
to issue a writ of election to fill the Obama vacancy. That
writ must include a date, but it appears that the Illinois
legislature has provided only one date from which Governor
Quinn may choose: November 2, 2010.
The plaintiffs would like us to rule that the provision
of the Illinois Election Code governing senate vacancies, 10
ILCS 5/25-8, is unconstitutional because it prevents Governor
Quinn from choosing an earlier date, and thus from
allowing the people to be represented by an elected
Senator rather than a temporary appointee. We have
already concluded, however, that this issue is not properly
before us, and so we express no opinion on that aspect
of Illinois's system.
We note, however, that the Illinois statute does not
expressly prevent the governor from issuing a writ of
election whenever he chooses. Some other states' statutes
that concern senate vacancies explicitly prohibit the
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
36 No. 09-2219
state executive from issuing a writ in certain circumstances,
e.g., CONN. GEN. STAT. ANN. § 9-211(a)(3) (West
2009) (if the vacancy occurs within 62 days of a
scheduled election, "the Governor shall not issue such
writs and no election shall be held"), but the Illinois
statute contains nothing close to the prohibitory
language used by these laws. Nor does the Illinois statute
appear to command the governor to issue a writ of
election. While it is true that some state laws explicitly
require the writ to issue, e.g., FLA. STAT. ANN. § 100.161,
such a statutory command to the state executive is not
necessary. The language of the Seventeenth Amendment
is enough on its own to authorize the executive's action,
no matter what state law says or does not say. It is
enough that the plain language of 10 ILCS 5/25-8
does not seem to interfere with the governor's constitutional
obligation to issue a writ.
This is not to say that the plaintiffs' concern that a
vacancy election may not happen is misplaced. Such an
event would be far from unprecedented. Based on our
review of U.S. Senate historical documents, there were
193 vacancies in the Senate between the ratification of
the Seventeenth Amendment and the election of President
Obama (excluding vacancies caused by a senator's
leaving office after a successor is regularly elected). See
Senate Historical Office, Senators of the United States 1789-
2009 (Feb. 2010), http://www.senate.gov/artandhistory/
history/resources/pdf/chronlist.pdf (last visited June 15,
2010); BIOGRAPHICAL DIRECTORY OF THE UNITED STATES
CONGRESS, 1774-2005, H.R. DOC. NO. 108-222 (2005),
updated version at http://bioguide.congress.gov/biosearch/
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 37
biosearch.asp (last visited June 15, 2010). Twenty-seven of
those vacancies were filled by an appointee who served
the remainder of the senate term in question; in those 27
cases, the election to fill the senate vacancy that is
required by the Seventeenth Amendment never took
place. (Notably, there was never an election to fill the
vacancy that was the subject of Valenti v. Rockefeller, supra.)
Even though Illinois law appears to set a date for an
election to fill a vacancy in the Senate, and Governor
Blagojevich's certificate of appointment provided that
Senator Burris was to serve "until the vacancy . . . is filled
by election as provided by law," the plaintiffs and the
Illinois executive branch have taken the position that
Senator Burris will remain in office until the next
Congress convenes on January 3, 2011. The defendants did
not dispute that Senator Burris's tenure will last this long
in their briefs or at oral argument. This supports the
plaintiffs' argument that President Obama's vacant
senate seat may be occupied during the lame-duck session
of Congress (November 2, 2010 to January 3, 2011) by a
replacement senator who has not been elected by the
people. We are not prepared to say that this is such a
short period of time that it should be dismissed as
de minimis. See Jackson, 426 F.2d at 1337 ("We are not
prepared to say as a matter of law that representation
from the time the results of the November . . . election
will be determined to January 3 [of the following year] is
de minimis.").
What is still missing here is a writ of election. Even
though the Illinois statute sets November 2, 2010, as the
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
38 No. 09-2219
date for the election to fill the Obama vacancy, that does
not mean that the writ is superfluous. To the contrary, a
writ of election from Governor Quinn would serve the
important function of guaranteeing that the people of
Illinois may elect a replacement to President Obama's
vacant senate seat on the date set by the Illinois legislature.
In addition, it would announce to voters that there will
be, in effect, two elections on that day--one to elect a
replacement to fill the vacancy and one to elect a senator
to the next Congress.
No one has raised, and we therefore do not address,
the question how the state is to decide whose names
should be on the November 2 ballot for the Obama vacancy.
The state might propose a solution acceptable to
all parties (e.g., using the candidates who have already
qualified for the election for the 112th Congress), so long
as that solution complies with Illinois and federal law.
We conclude that this issue is better addressed in the
first instance by the district court. 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.
C
Senator Burris offers a different reason--one based on
federal law--why plaintiffs cannot succeed on the merits
of their claim. Relying on federal election law, 2 U.S.C. §§ 1,
7-8, and Foster v. Love, 522 U.S. 67, 69-74 (1997), he
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
No. 09-2219 39
argues that November 2, 2010, is the only date on which
Illinois can hold an election to fill President Obama's seat.
Because we have decided that the timing of the election
is not properly before us, however, we have no comment
on this argument.
V
It is not enough for the plaintiffs to show a likelihood
of success on the merits. Critically, they must also show
why they will suffer irreparable harm if the preliminary
injunction they want does not issue. Winter, 129 S. Ct. at
375-76. It is there that their case founders. When they decided
to abandon their argument that the special election
had to occur as soon as practicable, they effectively disclaimed
any urgency in the matter that might justify
preliminary injunctive relief. Confronted at oral argument,
they were unable to suggest any irreparable harm
that they were seeking to avoid. In their reply brief, the
plaintiffs address harm in a cursory fashion, which
really just reiterates their merits argument. We have
made clear in the past that "[i]t is not the obligation of
this court to research and construct legal arguments open
to parties, especially when they are represented by counsel,"
and we have warned that "perfunctory and undeveloped
arguments, and arguments that are unsupported by
pertinent authority, are waived." United States v. Holm,
326 F.3d 872, 877 (7th Cir. 2003) (internal quotation
marks omitted). The fact that the plaintiffs leave us essentially
in the dark about the irreparable harm that they
confront makes it impossible for us to conclude that the
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40
40 No. 09-2219
district court abused its discretion when it denied the
preliminary injunction.
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. 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.
We detect no irreparable injury that will be avoided
through preliminary relief. Bearing in mind that our
review is under "the highly deferential abuse of discretion
standard," Burlington N. & Santa Fe Ry. Co. v. Bhd. of
Locomotive Eng'rs, 367 F.3d 675, 678 (7th Cir. 2004), we
see no reason to upset the district court's decision to
deny the preliminary injunction.
We AFFIRM the order of the district court denying
preliminary injunctive relief.
6-16-10
Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40


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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 2, 2010 10:46 AM.

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