* Former Chicago Ald. Marty Oberman sued last year to force a special election for US Senate. He claimed the US Constitution requires a special election and the appointment of Roland Burris was only temporary and the state should’ve set special election dates.

The lower court ruled against his request for a preliminary injunction, so Oberman appealed last fall. As we’ve already discussed, a confusing, long-winded and obtuse appellate opinion [fixed link] was finally handed down in June that claimed a special election was necessary, but no election was actually ordered.

A court hearing was held yesterday, and the state attorney general objected to a special election based at least partly on grounds that there simply isn’t enough time to conduct a primary before November…

“It’s extremely difficult to try to shoehorn in a process where candidates file petitions to get on the ballot and then the ballots are prepared and the voting equipment is prepared and then to get all that stuff deployed in the polling places, then get all that machinery system back into the warehouse,” said James Allen, spokesman for the Chicago Board of Election Commissioners. “You still have to accept absentee ballots for 14 days after the election; you may not have a proclamation until say the end of September, and then at the end of September, you’re supposed to be sending ballots out to overseas and military voters for the general election.”

There’s lots more detail from Allen at this link.

They also claimed that the cost would be quite high - up to $30 million statewide.

* You can read the attorney general’s motion that was filed yesterday by clicking here. From the motion…

…in declining to hold that the period between November 2, 2010 and January 3, 2011 is de minimis… 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.

Translation: Even if there was time to hold a special primary and a special election, which there isn’t if we follow state and federal laws, the new Senator would be in office about a month, over the Christmas break. That’s a lot of cash for no benefit. Ridiculous.

* Oberman came up with a goofy way to get around the serious time constraint problem…

Plaintiffs argue that adding a second ballot could be done at no cost to taxpayers if the candidates are chosen by party leadership

Translation: The three state party chairmen could appoint candidates to the general special election ballot. According to the attorney general and the Chicago elections board, that would be against state law…

10 ILCS 5/7-1 of the Election Code states:
“Except as otherwise provided in this Article, the nomination of all candidates for all elective State, congressional, judicial and county officers … shall be made in the manner provided in this Article 7 and not otherwise.” ie through a primary.

10 ILCS 5/7-61 then reads: “Whenever a special election is necessary the provisions of this Article are applicable to the nomination of candidates to be voted for at such special election…” and then goes on to detail a primary.

Thus, even if the code does not specifically refer to a U.S. Senate special election, it does give clear direction.

Also, why bother to even hold a special general if the party leaders are gonna just appoint the nominees anyway?

* Yesterday’s court hearing produced no results, and we may not get any direction for weeks. It’s also possible, maybe probable, that the full appellate panel will take the case back and look at it. From James Allen of the Chicago Board of Election Commissioners…

The next hearing on this matter was scheduled for Wed., July 21 — but Judge Grady advised all parties to be prepared to return to court sooner in the event the 7th District Court of Appeals acts before then to affirm, clarify, amend or otherwise change the opinion it issued on June 16 regarding the need for a Nov. 2 Special Election for the U.S. Senate seat currently held by Roland Burris.

* I sure hope Oberman isn’t pursuing this suit because of any eligible reimbursable expenses from the state. But the timing of the appellate ruling now means that there just aren’t enough weeks left to run this silly special election. He needs to drop it and move on.

*** UPDATE 1 *** From Champaign County Clerk Mark Shelden’s blog…

In fact, if a special primary election would be held, it is all but certain that military ballots would not go out in time to meet the new standards set up by the MOVE Act.

It could also be argued, persuasively, that a simple tweak to the Election Code could clarify this issue for this election. That would require a special session, but the cost of that vs. the cost of a special primary is not even close. If Judge Grady, at the U.S. District Court, tries to take the authority for this process away from the legislature, the legislature should wrest it back and save taxpayers the money of the special election and not imperil the November election, especially the votes of those overseas.

*** UPDATE 2 *** From Marty Oberman…

The plaintiffs’ position is that, consistent with the election code and the constitution, the nominees for a special election to be held on Nov. 2, 2010, could be chosen through the same mechanism now contained in the election code for filling vacancies in nominations, i.e., the party central committees can choose the nominees. This appears to be what happened in the special election ordered by the 7th Circuit in 1970 when George Collins was elected to the House. This same approach was upheld by the 3rd Circuit Court of Appeals to flll the vacancy when Pennsylvania Senator Heinz was killed in a plane crash in 1991.

There is no requirement in the election code for a primary for a special senate election because the legislature never thought about it.

If the plaintiffs’ approach is followed, there will be not one penny of extra cost to the taxpayers and the principles in the constitution will be upheld. We still think the constitution is important, don’t we?