PI Original Josh Kalven Wednesday February 18th, 2009, 6:48pm

Schakowsky Wants Special Election To Replace Burris

In a statement out this afternoon, Rep. Jan Schakowsky argues that -- regardless of whether or not Roland Burris chooses to resign -- the governor should consider him a "temporary" appointee and hold a special election to replace him:

At the time, I made ...

In a statement out this afternoon, Rep. Jan Schakowsky argues that -- regardless of whether or not Roland Burris chooses to resign -- the governor should consider him a "temporary" appointee and hold a special election to replace him:

At the time, I made it very clear that Senator Burris should not have accepted the appointment from former Governor Rod Blagojevich. The Illinois State Legislature and Governor Quinn could put this all to rest by calling for a special election to allow the people of Illinois to decide who will serve out the 22 remaining months in President Obama's unexpired senate term. Under the 17th Amendment, the Governor has a right to end the temporary term at any time and call for a special election. Whether or not Senator Burris resigns, the best way to put credibility back into the process is through a special election.

In his New York Times op-ed on the matter back in January, Tom Geoghegan walked readers through the 17th Amendment in making the argument that the constitution actually requires all governors to fill Senate vacancies by special election:

It may have been a while since many of us read the 17th Amendment, which was ratified in 1913. Its first paragraph replaced the indirect election of senators by state legislatures with “direct” popular election by the voters. The second paragraph, which you may have skipped in school, deals with vacancies. It states that when seats open up unexpectedly, governors “shall issue writs of 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.

The pretext being used is a legal “proviso” in the amendment that comes later in the second paragraph. It states: “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.”

A proviso, one learns in law school, is to be interpreted strictly, and certainly should not cancel out the clause it modifies. In this case, that clause states in plain English that the governor must issue a writ of election. Rather than excusing the immediate issuance of a writ, the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines. For example, if the legislature decided that it would take 120 days to hold a special election, it would seem perfectly proper for the governor to send a temporary appointee to vote on a pending budget bill or major treaty.

I'd be curious to hear what Gov. Quinn thinks of this idea.  Dawn Clark Netsch told the AP today that such a move by the governor would "be ripe for a lawsuit."  But as Geoghegan makes clear in his piece, there's reason to believe it would survive a court battle.

Meanwhile, Sen. Dick Durbin talked to the Tribune's Rick Pearson about the fiasco today:

“I am troubled by this and I hope he will call in some advisers he trusts and gets some advice about what to do next,” Durbin said of Burris. “At this point, his future in the Senate seat is in question.” [...]

“I am troubled by this and I hope he will call in some advisers he trusts and gets some advice about what to do next,” Durbin said of Burris. “At this point, his future in the Senate seat is in question.”

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