Seventeenth Amendment Requires A Popular Election To Fill A Senate Vacancy
JUDGE v. QUINN (June 16, 2010)
For 125 years after the founding of our country, the two senators from each state were chosen by that state's legislature. The Seventeenth Amendment changed that. It provided for the direct election of senators by the people. The Seventeenth Amendment also changed the method by which a Senate vacancy was addressed. It provided that the State executive issue writs of election. It added that the state legislature "may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Barack Obama created such a vacancy when, after being elected President, he resigned his Senate seat on November 16, 2008. The governor of Illinois appointed Roland Burris as United States Senator from Illinois to serve out the almost 2 years remaining in Obama's term. Two Illinois registered voters brought suit pursuant to § 1983. They alleged that Illinois' failure to hold an election to fill the vacancy violates the Seventeenth Amendment. Judge Grady (N.D. Ill.) denied the preliminary injunction and dismissed the complaint without prejudice. Plaintiffs appeal.
In their opinion, Judges Rovner, Wood, and Tinder affirmed. The Court concluded that plaintiffs had standing. Their alleged injury was not a general grievance but a denial of their right to vote. The injury was traceable to the Governor's conduct and it could be redressed by a favorable decision. On the merits, the Court first addressed the likelihood of success prong of the preliminary injunction test. It looked to the language of the amendment: a) the principal clause obligated the state's executive to issue a writ of election in the event of a vacancy, b) the proviso clause preserved the executive's pre-amendment power to appoint a temporary replacement so as to maintain the state's representation in the Senate, and c) the Court concluded that the "as the legislature may direct" language in the proviso referred to the legislature's power to control the Senatorial election. Reading the clauses together, the Court held that the amendment requires the state to hold a popular election to fill a vacancy and requires the governor to issue a writ that includes a date for the election. The logistics of that election, however, are left to state law, including the legislature's power over the date of the election. Illinois has set the date for that election as the same date of the general election. The practical impact, therefore, is that the people of Illinois will elect a Senator to serve the remainder of Obama’s term (through January of 2011) and a successor to Obama in the same election. Given that it is plaintiffs' claim that the Governor has not issued that writ, the Court concluded that they had established a strong case of likelihood of success. Unfortunately for them, they had not shown any irreparable harm. Without a showing of irreparable harm, the district court did not abuse its discretion in denying the injunction.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select