This article first appeared in the St. Louis Beacon, Feb. 16, 2009 - The way the law stands now, Roland Burris appears to be the senator from Illinois until the 2010 congressional elections, a legal expert says. But the Illinois Legislature might be able to pass a new law moving up the election, or the U.S. Senate could expel Burris with a two-thirds vote.
The 17th Amendment, establishing the direct election of senators, provides that, "When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies." But the amendment then adds a proviso: "That the legislature of any State may empower the executive ... to make temporary appointments until the people fill the vacancies by election as the legislature may direct."
In response, Illinois passed a law - Section 25-8 - stating that "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..."
Joel Goldstein, a law professor at Saint Louis University, explained the situation this way in an email: "If 25-8 is the only relevant provision, as I imagine it is, I would think Burris' appointment runs until the 2010 election unless it was interpreted to run until the election of Rahm Emanuel's successor. ... Alternatively, the Senate could expel Burris by 2/3 vote if that was thought to be appropriate or Burris could resign, perhaps trying to use that as leverage with the authorities as Agnew did."
The special election to fill the congressional seat of Rep. Rahm Emanuel, presidential chief of staff, is set for a March 3 primary and April 7 general election - probably too soon for an election for the Senate. The Agnew referred to in the email is Spiro T. Agnew, the vice president who used his office to negotiate a deal with prosecutors before his resignation as Richard M. Nixon's vice president.
Section 25-8
Sec. 25-8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
(Source: Laws 1943, vol. 2, p. 1.)
Gov. Pat Quinn, in calling Friday for Burris to resign, said he would support a new state law providing for an election to fill the Senate seat before 2010. Quinn's bill would allow 72 days for a primary campaign and another six weeks for the general election campaign.
But Quinn wants Burris to quit first. He said he didn't favor passing a law to set a new election if Burris has not resigned. Quinn said this would raise legal questions that would lead to litigation. | Politico
Mike Lawrence, former director of the Paul Simon Public Policy Institute at Southern Illinois University Carbondale, understands Quinn's argument. He gave this political analysis in an email: "When he (Burris) was appointed, Illinois law did not provide for 'temporary appointment' until a special election. Even if the legislature now passed a law, it would seem Burris could make a good ... case. I think he may resign before this question becomes a real one -- although it would totally be against his nature to do so."
Goldstein wrote that instinctively it would seem that a new state election law should apply only after it is passed. But given the text of the 17th Amendment, he said, there was a strong argument for applying it retrospectively and allowing a new election to supplant Burris even if he doesn't resign.
"Although 25-8 seems to suggest Burris' appointment is good until the next election of representatives, the 17th Amendment clearly favors elected senators to appointed ones and limits the term of an appointed senator to the time when 'the people fill the vacancies by election as the legislature may direct.' The language 'as the legislature may direct' seems to allow for future legislative action. If so, the Supremacy Clause would cause the 17th Amendment to prevail over any right Burris might have by 25-8. " Under the Supremacy Clause, a federal constitutional provision trumps a state law.
William Freivogel is the head of the journalism school at Southern Illinois University Carbondale and a longtime journalist in St. Louis.
