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Are Gubernatorial Appointments Unconstitutional?

Don Rose 3 March 2009 No Comment

Could this be the end of governors appointing senators to serve until the next general election?

The end of the Burris problem?

The end of New York’s dicey blue-dog Democrat problem?

The end of Blagojevichian backroom dealings?

The beginning of real democracy in filling senate vacancies?

A federal lawsuit filed by Tom Geoghegan and former Ald. Marty Oberman six days before the special congressional election in Illinois’ 5th Congressional District may have a local and national impact far beyond the results of the primary.

In essence it says that the Constitution requires special elections to fill senate seats vacated by resignation or death and would force Gov. Pat Quinn to call one. It says that a governor may appoint someone to hold the seat only in the brief interim between the date the seat is vacated and a special election is held.

The suit is based on a reading of the 17th Amendment, which was also raised by Attorney General Lisa Madigan the same day Geoghegan’s suit was announced. She suggested that the Illinois legislature is empowered to call a special election, the winner of which would replace the temporary appointee. Her reading says the constitution expresses “a clear preference” for elections.

All this, naturally, is being raised not as a constitutional principle, but as a means of removing Burris. Burris could, of course, run in the special along with everyone else, including Bill Daley, the biggest name to express an interest in the job.

If enough big-name white guys got into a special primary, Burris could even win the primary with a split vote. But he would be in severe jeopardy against a reasonable Republican, such as U.S. Rep. Mark Kirk of Chicago’s northern suburbs.

Actually, Geoghegan raised the issue much earlier, not because of Burris, but as a point of law. In a Jan. 7 op-ed article in the New York Times he expressed the view the constitution mandates—not just “prefers”—special elections.

He wrote:

“The second paragraph [of the 17th Amendment]…deals with vacancies. It states that when seats open up unexpectedly, governors ‘shall issue writs of special elections to fill such vacancies.’ The plain enough meaning is that the governor will issue an order for a special election. But for decades now governors have opted not to issue writs directing new or special elections. Why are they ignoring the Constitution? To increase their own power, of course.”

To his credit, Quinn, while still lieutenant governor, publicly favored a special election, as did Sen. Dick Durbin. They quickly changed their minds—presumably because professional Democrats pointed out that the party could lose the seat in the negative atmosphere generated by the Blagojevich arrest and scandal.

Democratic legislative leaders used the excuse that a special election would be too expensive for the state.  Would they really worry about the cost if they were certain to win the election?

When does democracy become too expensive for American citizens? And who decides that it does?

Strangely enough, Geoghegan’s suit was virtually blanked out by the local media, though just about every camera and reporter in town covered his news conference. Only Fox News, of all outlets, picked it up and ran all weekend with the story. Except for an item in Mike Sneed’s Sun-Times column, I couldn’t find a line about it in print anywhere else.

Yes, the suit was filed on a heavy news day—President Obama issued his budget and former Ald. Ed Vrdolyak was given a walk by Judge Milton Shadur. But still, there have been followup stories on Madigan’s message and editorials calling for a special election. Nary a mention that the matter is now before the federal court.

If this was intentional, perhaps the media collectively ignored it because they saw it as a Geoghegan campaign stunt—again ignoring the fact that he has been on this issue for a couple of months, long before any other great political mind in town remembered that the Constitution has had a 17th Amendment since 1913.

What a laugh if this guy’s suit ultimately changes the way America does business.

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