* Statement from Senate Republican Leader Radogno and House Republican Leader Durkin…

“The Illinois Constitution requires the Governor-elect to appoint a new comptroller to a four-year term. A partisan and constitutionally-dubious eleventh hour law would face a certain legal challenge and force the people of Illinois to endure a protracted and legal battle that no one wants. The only Constitutionally responsible choice is to allow the Governor-elect to appoint a Comptroller to a four-year term.”

* And here’s their legal analysis…

The Illinois Supreme Court has held that “the State constitution is supreme within the realm of State law.” See People v. Gersch, 553 N.E.2d 281, 287 (Ill. 1990). In this case, Section 2 of Article V of the Illinois Constitution governs the terms of office and the timing of elections for state officers, including Comptroller. It speaks in clear and mandatory terms in two important respects. First, the “officers of the Executive Branch shall hold office for four years beginning on the second Monday of January… until their successors are qualified.” As the Attorney General indicated in her advisory opinion, that means that a vacancy will occur in the Comptroller’s Office for the term of office that runs from January 12, 2015 to January 14, 2019. Second, Section 2 also provides that the state officers, including the Comptroller, “shall be elected at the general election in 1978 and every four years thereafter.”

If the General Assembly were to pass a state law that creates a special election for the Comptroller in 2016, that law would violate the express terms of Section 2 in two ways. First, it would presumably create two two-year terms of office, despite the fact that Section 2 clearly provides only for a four-year term that runs until January 14, 2019. Second, it would provide for an election of a state officer outside of the schedule established by Section 2 requiring that the election of the Comptroller will be held every four years after 1978.

Section 7, Article V dealing with vacancies does not authorize the General Assembly to order a special election to fill a vacancy or replace a person who is appointed to fill a vacancy. Rather it says that the Governor “shall fill the office by appointment” and that person shall “hold office until the elected officer qualifies or until a successor is elected and qualified as may be provided by law.” The phrase “as may be provided by law” modifies “qualified” and not the word “elected.” In fact, the only support that this language was intended to provide for a special election comes from statements of a delegate to the 1970 Constitutional convention. Those statements directly conflict with the clear language of Section 2, as noted above. When a conflict exists between the express language of the Constitution and any legislative history, the Illinois Supreme Court states that “the best indication of the intent of the drafters is the language which they voted to adopt.” See Coryn v. Moline, 374 N.E.2d 211, 213 (Ill. 1978). Where the adopted language is clear, as it is in Section 2, “it will be given effect without resort to other aids for construction,” including statements of individual delegates. See People ex rel. Baker v. Cowling, 607 N.E.2d 1251, 1253 (Ill. 1992). In this case, it is also important to note that the legislative history cited comes from the debate over Section 7, not Section 2 dealing with the term and timing of the election of state officers. Therefore, the direct conflict between the express language of Section 2 and the legislative history of Section 7 would likely be resolved by enforcing the clear terms of Section 2.

Our own review of the committee reports and verbatim transcripts from the Constitutional Convention show that the election schedule for constitutional officers established in Article V, Section 2 was deliberately intended by delegates to allow voters to concentrate their attention on the state election contests in those years, rather than risk that an informed debate of state issues would be overwhelmed by the sound and fury of a national presidential contest. Those intentions should not now be lightly set aside.

We do not contest the right of the General Assembly to seek a special election. That is within their authority and judgment to do so. In the case of a state officer, like the Comptroller, however, it would require a constitutional amendment that revises the clear and mandatory terms of Section 2. As for Governor-elect Rauner, his only authority under the Constitution, as currently constituted, is to appoint a person who will assume a four-year term on January 12, 2015.

* “The phrase ‘as may be provided by law’ modifies ‘qualified’ and not the word ‘elected’” seems like a huge stretch to me. If there was an “or” in there, I could see it, but not this way.

Your thoughts?

* Also, from Bruce Rauner’s office…

“There is a real likelihood that a statute mandating a special election would violate the Constitution and result in costly litigation and uncertainty for Illinois taxpayers. The only route to enact a special election for a statewide officeholder that is absolutely consistent with the Constitution is passing a constitutional amendment. Additionally, any major change like this should apply to all future vacancies and be carefully and thoughtfully discussed - not rushed through in a last minute special session that would look overtly political.”

…Adding… A commenter points out this section of the above legal analysis…

First, the “officers of the Executive Branch shall hold office for four years beginning on the second Monday of January… until their successors are qualified.”

They left out two very important words: “elected” and “election”…

These elected officers of the Executive Branch shall hold office for four years beginning on the second Monday of January after their election..

…Adding More… From commenter Norseman…

I read a little further on the committee report presentation on the relevant sections. GOP staff probably read it too, but don’t want to mention it. This seems cut and dried.

“We leave unaltered the existing constitutional language, in this and other sections, which in the past has served to support statutes calling for special elections when an appreciable time remains in an incompleted term.”

Explanation and Commentary on Section 8. Vacancies in Other Elective Office, 1970 — COMMITTEE PROPOSALS, Page 373

…And the final nail in the coffin… This is from the original Con-Con documents that Attorney General Lisa Madigan sent out the other day. Click here and check page 8…

In the 1870 Constitution the wording is “elected and qualified in such manner as may be provided by law.” (Article V, Section 19.) The Report of the Committee on the Executive indicates no intention to change the thrust of the original provision. (P. 37.) But if that is true, it seems essential to change “qualified as provided by law” to “elected and qualified as may be provided by law.” Then it is clear that the General Assembly (a) can do nothing, (b) can provide for special elections to fill the vacancies other than Lieutenant Governor, but (c) cannot provide any other method for filling vacancies.

Done.