The election to replace Roland Burris as the junior senator from Illinois is heating up, with Mark Kirk and Alexi Giannoulias fighting tooth and nail to win in November, as Green Party candidate LeAlan Jones continues to climb in the polls.
But a new ruling by Judge Diane Wood and the Seventh Circuit Court of Appeals might shake things up: Illinois may be required to hold a special election to replace Burris until January 2011.
At the heart of the matter is the Seventeenth Amendment, which allowed for direct popular election of senators (they used to be appointed by state legislatures). The second paragraph of that amendment reads:
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: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
Of course, just such a vacancy happened when Senator Obama was elected President Obama. As the juicy wiretap details attest, former Governor Rod Blagojevich had a grand old time "mak[ing] temporary appointments" to the seat, ultimately choosing Roland Burris after his attempts at sale or self-promotion failed.
But what about the writs of election? And the "temporary" part?
In Judge Wood's ruling, she emphasized those very notions. Wood's words, from an article in The Atlantic (via Chicagoist):
...the second paragraph of the Seventeenth Amendment establishes a rule for all circumstances: it imposes a duty on state executives to make sure that an election fills each vacancy; it obliges state legislatures to promulgate rules for vacancy elections; and it allows for temporary appointments until an election occurs. This demarcation of constitutional powers and duties between state executives and state legislatures advances the Seventeenth Amendment's primary objective of guaranteeing that senators are selected by the people of the states in popular elections.
The Seventh Circuit Court sent the case in question back to the lower District Court, where Judge John Grady will hear arguments.
According to WBEZ, Grady said "having an election for that seat may be inconvenient, but the Constitution is often inconvenient. He's asked both sides to research some ways the state could hold such an election and report back to him next week."
If there were such an election, the senator who won would serve out the remainder of the term originally won by Obama -- that is, he or she would serve for the few months between that election and the time when Kirk, Giannoulias, or whoever would take the seat.
Who would run in this special election? Would the short-lived senator have an impact on national politics? On Illinois' November elections? Can Illinois even muster an election between now and November?
All these questions remain to be answered. But Illinois Statehouse News suggests one bizarre outcome: that voters will have to vote twice for Senate in November, once for the very short term between November and January, and once for the following six-year term.