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AG Madigan: Legislators can force special election

Thursday, Feb 26, 2009

* I’ll have more on Sen. Burris in a different post this morning, but this should kickstart the day in an interesting way…

In the latest installment of the saga of U.S. Sen. Roland Burris, Atty. Gen Lisa Madigan issued an opinion late Wednesday saying she thinks it would be legal for state lawmakers to move up the date of the Senate election to choose a successor to President Barack Obama, who vacated the seat.

The legal opinion by Madigan, which was sought by Republicans, means legislators in theory might be able to force Burris to run in a special election if he wants to retain the U.S. Senate seat he was appointed to by then-Gov. Rod Blagojevich amid a cloud of scandal. Right now, Obama’s former Senate seat is set to be decided by Illinois voters in a February 2010 primary and a November 2010 general election.

If Burris lost, he would be out of office sooner than January 2011, when the term he is filling is set to end. That would also be the case if Burris chose not to run—Illinois’ new senator would take over shortly after a special election.

In a letter to members of the General Assembly, Madigan said such a move would be legal under the U.S. Constitution.

Read the opinion by clicking here.

- Posted by Rich Miller        

  1. - Concerned Observer - Thursday, Feb 26, 09 @ 9:28 am:

    So what options are there:

    A) the state does nothing (this is always likely)
    B) legislators order a special election. Burris sues to stop it, stalling the process enough that it doesn’t matter whether he wins or loses, we’re into the 2010 election anyway.
    C) legislators order a special election. Burris doesn’t sue because of the legal fees, and runs.
    D) legislators order a special election. Burris doesn’t sue, but doesn’t run because it would be too costly, and is ousted from office whenever the election happens.

    A) is still the most likely option in my opinion, but we’ll see. I’m sure I’m forgetting E) and F) options too.

  2. - Esteban - Thursday, Feb 26, 09 @ 9:32 am:

    Prrhaps Lisa was absent the day her law professor
    explained the concept of an “ex post facto law”…

  3. - OneMan - Thursday, Feb 26, 09 @ 9:32 am:

    So someone would get to be senator for a year before they had to run again? Seems like a bit of a waste…

  4. - BGA Dave - Thursday, Feb 26, 09 @ 9:39 am:

    Special election. Now.

    This isn’t an ex post facto law. The nature of the appointment is inherently temporary. This opinion simply weighs in on one interpretation of the special appointment power.

  5. - George - Thursday, Feb 26, 09 @ 9:43 am:

    I am sure this help get a little media buzz for her, but will probably (and maybe rightly) go the way of her supreme court maneuver back in December.

  6. - Redbright - Thursday, Feb 26, 09 @ 9:49 am:

    Regardless of the legalities, won’t this force future candidates to reveal themselves more quickly just to be sure they are part of the dialogue.

    I was at a large gathering of a mixed group of unrelated people this week in Chicago. A joke was made about the need for a new Senator. The African-Americans in the audience frowned greatly while everyone else howled.

  7. - ken - Thursday, Feb 26, 09 @ 9:50 am:

    The seventeenth amendment allows a temporary appointment, until such time as a special election can be held. It does not state that the special election must coincide with a general election. In fact, temporary appointments until the general were not the intent of the amendment, but governors have generally sought to keep their appointees in office as long as possible, and not incur the expense of a special election.

  8. - Ghost - Thursday, Feb 26, 09 @ 9:50 am:

    Estaban, it is no an ex post facto law. It does not apply retroactively. it is not changing the legal status or criminalizing a prior act. A special election would be a future event that in now way changes the original temp appointment. The temp appointment had no set time, such as a term of office. The temp appointments length is framed in by the ocurence of an election. The legislature is free to set when that election is scheduled. Scheduling that election at a futre date does not change the status of a prior act or consitute in any way an ex post facto law. its not even a grey area it is co clear this is not an ex post facto law.

  9. - Lakefront Liberal - Thursday, Feb 26, 09 @ 9:54 am:

    I’d like to make the case for special elections in all circumstances *except* statewide office. And I say this not because of any desire to affect our current situation, but as something that I think is the best policy generally.

    It is possible, albiet difficult, for an outsider/newcomer to run a competitive race for something the size of a congressional district or smaller in the time given for a special election. It is not possible for that person to do so statewide. Not only that but it is not possible for even an established candidate to be accessible to voters/stakeholders *statewide* during the time frame of a special election. As rushed as the race in the 5th has been, there have been ample opportunties for community groups and others throughout the district to meet with the candidates. For anything larger than a CD that would not be possible.

    To me the ideal would be to have the governor appoint someone who would be prohibited from running for the seat to serve until the next federal election. However, I am not sure if legally you can prohibit someone from running for public office. None the less, my feeling is that there should be special elections for all seats except statewide.

    And just to clarify, I mean all offices. In other words I don’t think Daley should be able to appoint Aldermen, I don’t think Committeemen should be able to appoint new Cook County Board Commissioners or state legislators, etc. These seats should be left vacant until a special election can be held.

  10. - Ghost - Thursday, Feb 26, 09 @ 9:55 am:

    An example of an ex post facto law would be a law which removed the Govenors authority to make a temp appointment retroactively to the Burris apointment. Thus the act was legal when commited, but has been made illegal retroactivley.

    That said, any special election would be occuring at best near the end of 2009, so we are spending 50 million to knock 12 months off the elction ina state that can;t pay for medical bills, prescription bills, drug and rehab centers etc? Just because we can do a thing does not mean we should.

    The better solution, opressure the US senate into voting Burris out. ALl it takes to remove Burris is a 2/3 vote in the senate. Then put in a new temp until the next election. Save 50 million.

  11. - EmptySuitParade - Thursday, Feb 26, 09 @ 9:56 am:

    Those laugh a minute jokesters at StateWideTom’s brain trust are using Michigan firm to place their misinformation calls about Commando/Congressman Kirk’s senate campaign.
    Can’t find an IL outfit ?????

  12. - Rich Miller - Thursday, Feb 26, 09 @ 9:58 am:

    Esteban, you have no idea what you’re talking about on this subject. The ex post facto thing is a red herring, people, move along.

  13. - LOL - Thursday, Feb 26, 09 @ 9:59 am:

    This state is over 9 Billon dollars in debt and we want to spend more money for a special election so we can then have a primary in less than a year? Wow what a great way to spend the people’s money! Of course the next thing will be raising our taxes to pay for the wasteful spending!

  14. - Deep South - Thursday, Feb 26, 09 @ 10:16 am:

    Let’s move on here…allow Roland stay in the Senate…he can’t do much harm since most senators don’t really want to be seen with him. Let the regular election cycle run it course and Roland will be gone.

    All these other plans are too time consuming and too expensive.
    If we can just stand to be patient, Roland will get gone soon enough.

  15. - Dan S, a Voter, Taxpayer and Cubs Fan - Thursday, Feb 26, 09 @ 10:18 am:

    I still contend that 1)Burris needs to be removed from office and 2)save money by simply waiting for the next scheduled election cycle. We have been short representaion since Peter Fitzgeralds term expired whats a little longer going to hurt. Problem solved.

  16. - Keep Smiling - Thursday, Feb 26, 09 @ 10:21 am:

    The GA would need to move very quickly - and without legal delay from Burris - to hold a special election concurrent with the April 7 consolidated municipal elections to contain cost like they originally discussed. Absentee and early voting begins mid-March. I heard a reporter say the month of May on the news today, but it seems like back-to-back elections would negatively impact voter turn out.

    I apologize for my ignorance, but I still don’t understand how the candidates for a special election would be determined. Wouldn’t we end up with a long list of candidates like the 5th Congressional District? Would Burris automatically be placed on the ballot as the currently appointed candidate? Ironically, if voters are confronted with a long list of names, Burris might just find himself elected.

  17. - 618er - Thursday, Feb 26, 09 @ 10:22 am:

    LOL I agree. The cost is ridiculous. Campaigning will probably start oh say August this year for the next primary. If he’s an embarrassment to the party, the dems should back another horse. If all he has left is the race card, and is loved by so many people maybe, he should have no problem running either as an independent or as the new face of the green party.
    Lieberman didn’t need party backing to get reelected.

  18. - Bill - Thursday, Feb 26, 09 @ 10:54 am:

    What is the point? Roland votes the same way Obama would have. This is what the people voted for. Leave him alone. He is not hurting anybody. It is not like someone caught him in an airport bathroom or with a freezer full of cash or someone bought him a massage table. Just leave him alone. If he runs next time don’t vote for him if you don’t like him. I really don’t understand the uproar what with the real problems we face as a nation.

  19. - Esteban - Thursday, Feb 26, 09 @ 10:54 am:

    My point was simple: in order to fill a vacancy,
    one has to exist. The vacancy has already been
    filled, per state law….

  20. - wordslinger - Thursday, Feb 26, 09 @ 11:02 am:

    Whether in a special or the regularly scheduled election, I wouldn’t be surprised if there is some mischief-making in the Green Party primary, as in a Dem of GOPer seeking to snatch the nomination there.

  21. - Louis G. Atsaves - Thursday, Feb 26, 09 @ 11:08 am:

    The “too expensive” to hold a special election argument is not very persuasive. Considering the special language of the 17th Amendment, it sounds like a special election can still be called. I see no language in the 17th Amendment that says ” . . . except where the cost of such an election may be deemed too burdensome.”

    The “regular ‘frozen ice’ February primary is getting closer so let’s not bother” argument justifies the foot dragging on this issue. A special election should have been called for last November.

    The “lets just keep him around he won’t hurt anybody” argument is equally absurd. If that truly were the case, then the seat should have been left vacant.

    The “race card” is something I will not bother to comment on. That one has been argued to death the past two months.

    The Tribune editorial hit the nail on the head. Burris is the albatross of the Democratic Party and will continue to be one until they start taking steps to remove him from office. If calling for a special election is the only way out, then they should go for it.

    Otherwise, they all remain Burris enablers. He “belongs” to the Democratic Party of Illinois who now shrug their shoulders at how he repeatedly lied to get into office and keep it. They can try to pass the blame to Blagojevich, but they could have called for that special election last November to avoid such a mess, and they didn’t.

    He does not belong to the People of the State of Illinois.

  22. - Ghost - Thursday, Feb 26, 09 @ 11:10 am:

    Esteban there is no logical or legal basis for your syllogism. The correct statement is, in order to elect a senator, you must hold an election.

  23. - Esteban - Thursday, Feb 26, 09 @ 11:14 am:

    The vacancy was filled in the manner prescribed
    by law at the time it was created by Obama’s
    resignation. If it could be “undone” or rescinded,
    Quinn would have done it by now.

  24. - Rich Miller - Thursday, Feb 26, 09 @ 11:16 am:

    ===Quinn would have done it by now.===

    You’re completely missing the point. Quinn can’t undo it. The problem is that state law doesn’t provide for a special election. That can be changed, according to LMadigan.

  25. - Who Id It? - Thursday, Feb 26, 09 @ 11:18 am:

    A special election will allow a dozen or more people to run without giving up their current elected positions. Look for city, county and statewide officials to jump into a special election. 25% the vote could make someone the democratic nominee. Focusing on statewide officials at this point is much too limiting.

  26. - EmptySuitParade - Thursday, Feb 26, 09 @ 11:39 am:

    Rich are going to have StateWideTom’s incoherent presser up soon?

  27. - Niles Township - Thursday, Feb 26, 09 @ 11:39 am:

    Lisa, Lisa. Your letting your politics into your legal analysis. That is something you promised never would happen on your wacth. I, for one, would be the first in line to see Burris removed as Senator. However, it has to be done in accordance with the law. What you have proposed will be held to be illegal, and will cost the taxpayers plenty of money fighting.

  28. - VanillaMan - Thursday, Feb 26, 09 @ 12:04 pm:

    What is the point? - Bill

    The end does not justify the means. You seem to have a problem with that.

    Illinois corruption need to be publically called out, humiliated and stomped to the ground. Those who benefitted politically from the Blagojevich adminstration’s taint of the Obama Senate seat should be used as an example and treated in this manner.

    If you do not do this, corruption will continue. These politicians thrive on public adoration. When they witness what one of their own endures due to their lies and manipulations, it is part of the political death sentence they have imposed on themselves.

    It isn’t good enough for Burris to get what he sold his soul for. He needs to be made an example of what happens when you sell your soul. Now!

  29. - Ghost - Thursday, Feb 26, 09 @ 12:22 pm:

    Niles what LMad indicatred is completly lawfull. The temp office holder fills the office until a new official is elected. Period. The only term of office set for a temp appointment is the occurence of an election to fill the spot. The legislature by law is free to legislatively set a special election date. As I mentioned before, its not even a grey area of debate if this is legal, you would have a better chance of winning the lottery then previaling on a suit against a law setting a special election.

  30. - Fed-up - Thursday, Feb 26, 09 @ 1:25 pm:

    Deep South –Let’s move on here…allow Roland stay in the Senate…he can’t do much harm since most senators don’t really want to be seen with him.— The bigger issue is that he can’t do much to help us either.

  31. - True Observer - Thursday, Feb 26, 09 @ 1:36 pm:

    For the sake of argument -

    Under LM’s Theory, why couldn’t the legislature schedule a special election for Durbin’s Senate Seat?

  32. - Fed-up - Thursday, Feb 26, 09 @ 2:27 pm:

    True Observer - because it isn’t vacant and he was duly elected.

  33. - Ghost - Thursday, Feb 26, 09 @ 2:30 pm:

    TO, because an elected senator under the consitution has their seat for the term of the office. A seat vacated before the expiration of a term can be filled temp until a special election is set OR the next reguarly scheduled election. i.e. a temp appointment does not get the seat for a term of years, but only until such time as the next election, special or scheduled.

  34. - True Observer - Thursday, Feb 26, 09 @ 3:50 pm:

    “because an elected senator under the consitution has their seat for the term of the office.”

    How about before the Senators started getting elected and were appointed by the Legislatures. Could the GA have replaced Douglas with Lincoln after it had already picked Douglas.

  35. - 10th Indy - Thursday, Feb 26, 09 @ 4:43 pm:

    TO - please try google - 17th ammendment ratified in 1913.

  36. - Legaleagle - Thursday, Feb 26, 09 @ 4:58 pm:

    I have to seriously question the corectness of the AG’s analysis. Anyway, part of me thinks that Burris should remain in office until January 2011 to remind the voters of Illinois of the consequences of poor choices!

Sorry, comments for this post are now closed.

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