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State resists Sen. Burris’s plea

Illinois Gov. Patrick J. Quinn on Friday urged the Supreme Court not to force a change in the planned election of a new U.S. senator to occupy the seat that formerly was held by President Obama.  Preparations for that special election, along with plans for a second election on the same day, Nov. 2, for a new term in the same Senate seat, are too far advanced to be undone at this stage, so the entire federal and state election in Illinois will be thrown into disarray if the Court imposes a change, the governor contended.  The governor’s challenge to temporary Sen. Roland W. Burris’s attempt to get himself placed on the special election ballot can be found here.  Two Illinois voters who started the court fight in Illinois over the Obama successor also filed an opposition to Burris’s plea on Friday.

Burris had hoped to continue his appointed service in the Obama seat until the new Congress assembles in January, but two lower federal court rulings have ordered that Illinois voters have the opportunity to elect someone even to fill the last two months of Obama’s Senate term, and as of now, Sen. Burris is not on the ballot to compete for that opportunity.  Burris will not be seeking the new six-year term for the seat.  Unless the Supreme Court steps in, a single ballot will be placed before Illinois voters, but it will offer places to vote separately for a two-month replacement for Burris and for a new six-year senator who would take office in January with the new Congress.  Only the candidates already eligible for the new term will compete for the two-month slot, under a federal judge’s order.

Because the governor and the two suing voters filed their responses early (they were not due formally until Monday), Justice Breyer or the full Court, if he passes the issue along, will be in a position to rule early next week.   (The Burris challenge to the special election part of the Nov. 2 ballot is application 10A272.)  Illinois election officials obviously are hoping for a quick resolution.

If Breyer or the full Court denies Burris’s plea for a stay of the special election part of the Nov. 2 balloting, it is conceivable that the Court itself would then go on and treat the stay application as a full petition for review of the lower court decisions, and take final action on it.  Burris’s main constitutional complaint is that only the Illinois legislature, not the federal courts, could decide who would be eligible to run for the temporary two-month seat.  The Seventh Circuit Court ruled that the state’s normal legal procedures for arranging elections could be overcome if that were a necessity under the federal Constitution’s 17th Amendment requirement that an election be held to temporarily fill a vacant Senate seat.

In opposing Sen. Burris’s attempt to block the special election unless he is on the ballot for it, Gov. Quinn told the Court that election officials throughout the state are busily preparing even now the ballots, so that absentee balloting and early balloting can occur ahead of the Nov. 2 formal election date.  The governor said the Senate election is not the only issue Illinois voters will be asked to resolve on the ballots they cast.  There are contests for five statewide offices, including the governor and lieutenant governor, as well as choices for all 19 members of the Illinois delegation in the House of Representatives, as well as 118 members of the Illinois legislature’s lower chamber, the House, and a third of its state Senate.  With county contests on the ballot in all parts of the state, the governor said, more than 1,000 offices are at stake.   All of those could be caught up in confusion and uncertainty if the Senate controversy requires a change, the governor contended.

Both the governor and the two Illinois voters who sought a special election to replace Obama argued in their filings Friday that Burris waited too long to bring his challenge, and both argued that, in any event, there is no legal merit to his claim.   The two voters accused Sen. Burris of attempting to scuttle the entire election because of his complaint about not being on the ballot to fill out the final two months of the present term.   Their brief argued that his legal challenge “was nothing more than a cynical and disingenuous attempt solely to benefit him while depriving all Illinois voters of their 17th Amendment right to elect a replacement senator.”

Presumably, Sen. Burris’s lawyers will have an opportunity to file a reply.