JUDGE v. QUINN (September 24, 2010)

Barack Obama created a vacancy in the United States Senate when he resigned his seat in November of 2008. Apparently, he got a better job. Illinois’ governor appointed Roland Burris to serve the remaining years of his term. Two Illinois voters brought suit, alleging that Illinois violated the Seventeenth Amendment by failing to hold a popular election. In a June 16, 2010 opinion (opinion and intheiropinion), the Seventh Circuit affirmed the denial of a preliminary injunction. The Court held that the plaintiffs had shown a strong likelihood of success on the merits (that the Seventeenth Amendment requires an election to fill any Senate vacancy) but had failed to show irreparable harm, since there was still adequate time to hold the election. The district court then held a series of hearings, during which Illinois ultimately agreed to hold the election (after the Court denied a rehearing and rehearing en banc). The State put forth a proposal, agreed to by the plaintiffs, under which the special election would be held the same day as the already-scheduled general election for the same seat -- and the candidates on the special election ballot would be those same candidates as on the general election ballot. Senator Burris, whose name will not be on the general election ballot, objected. He wanted his name included on the special election ballot, either by collecting some designated number of signatures or simply by agreement. Judge Grady (N.D. Ill.) adopted the State's proposal. The governor issued a writ of election and the court issued its preliminary injunction. Senator Burris appeals.

In their opinion, Judges Rovner, Wood, and Tinder affirmed. The Court first turned to Burris' argument that the case presented a nonjusticiable political question. Only two of the Baker factors were relevant, said the Court, and it resolved both against Burris. First, there was not a "lack of judicially discoverable and manageable standards." The Seventeenth Amendment, state law, and past Illinois history provided the rules and standards. Second, the question is not within the exclusive province of the political branch. When constitutional rights are infringed by the inaction of a state, a federal court has the power to hear the case and fashion a remedy. The Court next addressed Burris' argument that the court interfered with the role of the Illinois General Assembly when it decided whose names would appear on the special election ballot. The Court held that Burris waived this argument by not raising it below -- but also concluded that, although the states have principal responsibility for controlling the procedural aspects of these elections, a district court has the power to fashion a remedy for a constitutional violation. Finally, the Court rejected the notion that the district court order was an unconstitutional ballot access restriction. There is nothing in the order that excludes a particular class of candidates and the order is narrowly tailored to affect only one election.