UPDATE 4:47 p.m. Monday

Supreme Court Justice Stephen G. Breyer on Monday afternoon refused to block lower court rulings that set up a special election for the Illinois Senate seat formerly held by President Obama.  In a one-page order, Breyer turned aside the stay application (10A272) of Sen. Roland W. Burris, the Democrat who temporarily holds the seat.  As a result of Monday’s order, Burris will not be a candidate to serve out the remaining two-months of the Obama Senate term, in the special election set for Nov. 2.  He is not seeking the new six-year term.  Thus, his successor will take office within a short period after election day. The election for that full term, too, will be on the same Nov. 2 ballot.  Breyer acted alone on the application as the Circuit Justice.  Neither he nor the Court has taken any action on Sen. Burris’s separate petition for full review of his legal challenges (10-367).

In turning down Sen. Burris’s plea, Breyer gave no explicit explanation.  However, he did offer several citations that suggested his rationale.  He contrasted the situation facing Sen. Burris with one that was before a single Justice in 1972, in the case of O’Brien v. Skinner. In that in-chambers opinion, Justice Thurgood Marshall said the Court should step in if a class of voters are denied all opportunity to take part in an election.  Breyer presumably thought that the special election as arranged in Illinois did not result in that kind of exclusion.

Breyer also cited another 1972 in-chambers opinion, by Justice William O. Douglas in Westermann v. Nelson, saying that the Court should not interrupt an election campaign in response to a tardy request, with the election machinery alsready in motion. The implication was that that precedent fit the Burris challenge at this stage.

In addition, Breyer cited a 2005 in-chambers opinion by Justice Ruth Bader Ginsburg, in Doe v. Gonzales, refusing to provide temporary relief and concluding that a lower federal court should have more time to weigh in on a major dispute before the Court would act.  Breyer seemed to be implying that the Seventh Circuit should be given a chance to be the first to rule on Burris’s challenge.

The Monday order also dropped in a reference to a Supreme Court practice manual.

(Editor’s note: The following is a post as reported before Breyer acted.)

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Going beyond his plea for a temporary order to block a special Senate election in Illinois, Sen. Roland W. Burris has urged the Supreme Court to review his full legal challenge to lower court rulings that have set up that election — and, in the process, kept Burris off of the ballot for it.  The sitting senator — named temporarily to succeed President Obama in the Illinois seat — has filed a petition for review without waiting for the Seventh Circuit Court to act on an appeal pending there.  The petition is Burris v. Judge, et al. (docket 10-367).  (The linked file includes the petition as well as lower court rulings.)

Under the Court’s rules, a brief opposing the petition would not be due until Oct. 18.  That date runs quite close to the scheduled election date of Nov. 2, and that is why Burris has sought a stay of the balloting (application 10A272).  Both the state’s governor, Patrick Quinn, and the two Illinois voters who started the lawsuit that led to calling of the special election, have opposed any delay, and have argued that the senator’s legal challenges have no merit and are thus not likely to be granted review by the Justices.

As of now, Illinois voters are scheduled to cast a single ballot for the former Obama Senate seat, but they will be voting separately on that ballot on (1) a replacement for Sen. Burris, to fill out the last two months of what would have been Obama’s term in the upper chamber, and (2) a senator to begin serving a new six-year term starting in January when the new Congress opens.  After Obama was elected President, he resigned from the seat, and Burris was named to replace him.  Burris is not running for the new six-year term.

The dispute over the balloting was begun when two Illinois voters sued to demand that the balance of the Obama term be filled by an elected, not an appointed, senator.  As that lawsuit worked its way through the federal courts, the Seventh Circuit ruled that a special election had to be held, Gov. Quinn called a special election, and then a federal judge ruled that the only candidates who could seek the two-month seat were those who had already become eligible to seek the full six-year term; Burris has not entered that race.  Burris now has an appeal challenging that action by the judge, and that appeal is on an expedited schedule at the Seventh Circuit (Circuit dockets 10-2836 and 10-3052).

Burris’s certiorari-before-judgment petition seeks to bypass the Seventh Circuit, and get a ruling by the Supreme Court on three questions.  These are the questions presented:

1.  Whether the Seventeenth Amendment's express delegation of the power to ‘direct’ an election to fill a vacant seat in the United States Senate to state legislatures precludes a federal judge from selecting the candidates that shall appear on the ballot.

2.  Whether the Seventeenth Amendment allows a state to forgo a special election and instead permit a temporarily appointed United States Senator to serve for the remainder of the vacated term where that term expires in less than 2 years after the first federal election following the vacancy.

3.  Whether categorically excluding any would-be candidate from the ballot in a newly announced special election to fill a vacant seat in the United States Senate unless that individual had already registered and been certified by the Illinois State Board of Elections as a candidate for the regular November election is consistent with the First and Fourteenth Amendments.

The Seventeenth Amendment, added to the Constitution in 1913, replaced the former system of having U.S. senators appointed by state legislatures (Article I, Section 3) with a new system of direct election of senators by the voters of the states.   At issue in Sen. Burris’s challenge is the second paragraph of the Amendment, stating: “When vacancies happen in the representation of any state in the Senate, the executive authority of such 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.”

Sen. Burris is relying primarily upon the concluding words “…until the people fill the vacancies by election as the legislature may direct.”

(Earlier posts on this blog have focused on Sen. Burris’s stay application.  Justice Stephen G. Breyer has that application before him, but may choose to share action on it with his eight colleagues.  Presumably, the Court will act on the stay application before dealing with the certiorari-before-judgment petition, but that is not necessarily so.)

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