The powers of the state legislature in filling senatorial vacancies: A federal constitutional authority

I. Introduction

In December 2008, in an unprecedented event, the sitting governor of the State of Illinois, Rod Blagojevich, was arrested at his home by Federal authorities on suspicion of, inter alia, trying to “sell” the Senate seat recently vacated by President-elect Barack Obama. This created a scramble within Illinois political circles, extending from Springfield to Washington D.C., to sort out the issue of gubernatorial authority regarding the appointment of Mr. Obama’s successor.1 Early on, various voices called for State legislation to (a) remove the power of the governor to appoint a Senatorial successor and (b) to call a special election to appoint the successor. Prior to Gov. Blagojevich’s public statements suggesting that he would sign legislation for a special election, a fear existed that without an ouster of the governor, by resignation or impeachment, Blagojevich would be able to thwart legislative action through his veto power.

This matter took on an additional twist, when Gov. Blagojevich appointed former Illinois Attorney General Roland Burris to fill the vacancy. Although controversial, most commentators agree that Gov. Blagojevich was within his rights to do this. However, in the days and weeks following that appointment, a question asked by many was whether the Illinois General Assembly possesses the authority to undo or limit such an appointment, regarded by many as “tainted” due to the allegations against Blagojevich. This matter has taken on renewed interest with new allegations that testimony offered by Mr. Burris to the Illinois House Special Investigative Committee was misleading with respect to Mr. Burris’s contacts with Blagojevich, the former Governor’s family, and his aides prior to the November 2008 election and prior to his appointment to the Senate.2 Yet, even now, months later, substantial confusion exists as to the authority of the Illinois General Assembly to act with respect to the powers of appointment to fill a Senatorial vacancy.

This article addresses the origins of the power of appointment to fill Senatorial vacancies. Specifically, it will address the respective powers of the Illinois General Assembly and Governor, and show that the Governor’s power is extremely limited. Moreover, as will be explained, the State Legislature’s power is derived from a grant of specific authority directly from the U.S Constitution. Because the Legislature’s grant of power is outside the scope of the Illinois Constitution, its power does not seem limited by or subject to the normal checks and balances created in the State’s Constitution. Accordingly, under the plain language of the Federal Constitution, the Illinois General Assembly’s power seems to be supreme with respect to establishing or limiting the power of appointment, enabling that body to act without fear of veto or other action by the then-sitting Governor.

II. The Power to Appoint to Fill Senatorial Vacancies

In the opening days of the controversy surrounding Gov. Blagojevich, many opinions and news articles appeared in the media offering explanations of the power to appoint Senatorial successors. At the outset of any explanation of such power, it is important to first understand the source of that power. Despite comments expressed in the news media, the power of the Illinois Governor to appoint is not derived from the Illinois Constitution.

A. The Silence of the Illinois Constitutional Provisions Regarding Appointments to the U.S. Senate

The powers and duties of the Illinois Governor are enumerated in Article V of the Illinois Constitution of 1970. Article V, section 8 of the Illinois Constitution of 1970 recognizes that the “Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.” Section 7 of that same article governs the ability of the Governor to appoint persons, on a temporary basis, to fill vacancies in other elective offices of the executive branch of the State, including the Attorney General, Secretary of State, Comptroller or Treasurer. Ill. Const. art. V, §7. Article V, section 9 of the Illinois Constitution addresses the power of the Governor to appoint all officers of the State for which there is no provision requiring an election. This includes the heads of the various Illinois departments. However, Article V is silent as to the filling of a vacancy in the U.S. Senate.

B. The Federal Constitutional Provisions

The origin of the Governor’s power, as it currently exists, is actually derived from the Seventeenth Amendment to the United States Constitution, ratified by the States in 1913.3 The Seventeenth Amendment states in relevant part:

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shallissue writs of election to fill such vacancies: Provided, That [sic] 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.4 (Emphasis added).

The wording of this Amendment is crucial to understanding the scope and power of appointment. Generally, the language of the U.S. Constitution shall be given its natural meaning.5 Under its express terms, the “executive authority of each State” is directed (a mandatory requirement) to issue “writs of election.” Such a writ has been defined as a written order from the governor of a state commanding the appropriate state agency to conduct a statewide election on a day certain, as provided by law, for the purpose of electing a United States Senator for the unexpired term created by the vacancy.6 However, the Seventeenth Amendment also grants state legislatures enormous latitude in directing the method of filling vacancies.7 Under the express language, the Illinois Legislature has the power, in lieu of the Governor’s issuance of a writ of election, to authorize the Governor to make temporary appointments to fill vacancies until an election is held “as the legislature may direct.”

C. The Current Illinois Statute Authorizing Appointment by the Governor

Pursuant to the broad authority granted to it under the Seventeenth Amendment, the Illinois General Assembly enacted section 25-8 of the Election Code (10 ILCS 5/25-8), which empowers the Governor as follows:

Sec. 25-8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election. (Emphasis added.)

Section 25-8 parrots the Seventeenth Amendment’s “temporary appointment” language. Thus, the power of the Illinois Governor to appoint a successor to the Senate is derived from Illinois statute, pursuant to a power given to the state legislatures through the Federal Constitution.

III. Term of Successor’s Office

Under section 25-8 of the Election Code, the “temporary appointment” lasts “until the next election of representatives in Congress.” Notably, section 25-8 does not say, “until the next regular election for Senator.” The plain and ordinary meaning of term “representatives in Congress” refers to Congressional office, rather than a Senator.8 Accordingly, the statute makes clear that the “temporary appointment” does not automatically serve out the entire remaining term of the Senator he or she replaces. Instead, he or she only serves until the next Congressional election—a maximum length of two years.

However, there is no express statement as to whether this only refers to a general election. The statute merely states “until the next election.” Under the plain and ordinary meaning of the statute, it would seem that even a special election satisfies the statute.9 Of course, the use of “representatives” in the plural form could support an argument that the statute was meant to deal only with general elections.10 This is an extremely urgent question that seems to be conveniently ignored in Springfield. As of the writing of this article, a special election has been scheduled to fill the vacancy in the 5th Congressional District created by the resignation of Congressman Rahm Emanuel, who accepted the position of White House Chief of Staff under President Barack Obama. This begs the question as to whether that special election satisfies the language of section 25-8, requiring an election for the replacement Senator as well. This question is beyond the scope of this article, however, and, given the current makeup of Illinois politics and potential costs resulting from a state-wide special election, seems unlikely to be answered in the near-term.

IV. Scope of the Power Granted to the State Legislature

Notwithstanding these issues, given the Federal Constitutional origins of the appointment power, it is clear that the Illinois General Assembly possesses the authority to modify the current law. One way that has been advocated is for the Legislature to pass a law modifying or revoking the power granted to the Governor. Because the Illinois Legislature’s grant of the appointment power to the Governor is permissive under the language of the Seventeenth Amendment (“the legislature of any State may empower the executive thereof to make temporary appointments”), the passing of such a law would certainly fall within the broad language of the Seventeenth Amendment. Of course, absent some additional direction from the Illinois General Assembly regarding the filling of the vacancy “by election,” the default would require the Governor to call a special election anyway (“the executive authority of each Stateshall issue writs of election to fill such vacancies”).

One controversial issue that has arisen, however, in the discussion regarding removing the appointment power from the Governor, has been the extent of power the Governor may have to block such action pursuant to his veto authority under the veto procedure enunciated in Article IV, section 9 of the Illinois Constitution of 1970. Pursuant to that procedure, the Governor has the right to veto any law passed by the Legislature, as well as to let it sit on his desk for up to 60 days with or without a veto.11

However, the plain and unambiguous language of the Seventeenth Amendment does not require a state legislature to pass any laws. Rather, it states that the Governor’s appointment power shall last “until the people fill the vacancies by election as the legislature may direct.” (Emphasis added.) There is a substantial difference between the words “as the legislature may direct” and the apparently discarded alternative of “in accordance with state law.”

Black’s Law Dictionary defines the word “direct” as “To point to; guide; order; command; instruct.” 12 The Third Circuit Court of Appeals has recognized that the Seventeenth Amendment vests state legislatures with “discretion” “to direct the manner in which the vacancy election is to be conducted.”13 The court specifically recognized broad powers granted to state legislatures regarding the direction of vacancy elections, pointing out: “the explicit provision in the vacancy paragraph of the Seventeenth Amendment vesting discretion in the state legislature not once, but twice, cannot have been without significance.”14 Under its natural and plain meaning, the Seventeenth Amendment’s use of the word “direct” gives a state legislature the right to order or command a special election, outside the normal scope of its operations under a state constitution.

Although no cases have addressed this point, there are two possible, and potentially equally valid, interpretations of the Constitution. The first is that the right granted to state legislatures by the Federal Constitution would allow for a mere declaration. In effect, the Illinois General Assembly would merely pass a resolution, pursuant to its authority under the Seventeenth Amendment, commanding the method by which an election to fill a Senatorial vacancy should take place or directing the state election authorities to do so. An argument against this is that the Illinois Constitution only allows the General Assembly to act through laws, under Article IV. However, the Legislature would not be acting pursuant to the Illinois Constitution, but pursuant to a grant of direct authority from the Federal Constitution.

The second interpretation—which presumes that the Legislature may only act through laws—is that while the legislature would pass a “law,” pursuant to the Seventeenth Amendment, that statute would be outside the authority of the Governor to veto. Pursuant to the Supremacy Clause of Article VI, Section 2 of the United States Constitution and established precedent, laws of a state, including state constitutions, cannot trump the authority of powers and rights granted by the Federal Constitution.15 Thus, the provisions of Article IV, section 9 of the Illinois Constitution, regarding the veto process, would be inapplicable to any statute promulgated pursuant to the Seventeenth Amendment.

Regardless of the way the provision is effected, the Seventeenth Amendment’s broad grant of power allows the Illinois General Assembly to act without fear of veto or other gubernatorial action. Any other interpretation would subvert the clear and unambiguous authority granted to state legislatures under the Federal Constitution.

V. Conclusion

The Seventeenth Amendment offers state legislatures extraordinary power regarding the methodology by which they direct elections to fill Senatorial vacancies. But the thrust of that provision is that the ultimate authority rests with the voters. Under its terms, a legislature can choose not to act at all, requiring a special election called by the governor. State legislatures may also choose (as they did in Illinois) to grant gubernatorial power to appoint temporary successors to a Senate seat. However, the Seventeenth Amendment is clear that such appointments only last until voters are given the right to fill the vacancy permanently through an election process determined by the legislature. But even when such power is granted to a governor, state legislatures maintain broad discretion to direct a special election at any point. This discretion, being directly granted through the Federal Constitution, is not impacted or subject to state law processes, which would undermine that authority.

This power could very well be exercised to allow the voters to choose Illinois’s successor Senator even now—months after the appointment and seating of Roland Burris as temporary Senator and well over a year before his term would otherwise end. However, given the political environment and realities, it is far from certain that the General Assembly wishes to do so. Regardless, for the time being, the media coverage and political discourse has made for interesting reading, and has created opportunities to address otherwise obscure issues of constitutional law.*

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Editors’ Note: On February 25, 2009, Attorney General Lisa Madigan issued an opinion which concluded that the Illinois General Assembly may pass a law authorizing the setting of a special election to allow the people of the State of Illinois to elect a successor to the seat vacated by President Barack Obama. See Ill. Att’y Gen. Op. No. 09-001, issued February 25, 2009. A number of bills are currently pending with the Illinois General Assembly that would, among other things, amend section 25-8 of the Election Code to address the vacancy created by the resignation of President Barack Obama. See House Bill Nos. 365, 2503, 2543, 3793, and 4113 and Senate Bill No. 285.

Mr. Goldberg is a member of the law firm of Lawrence, Kamin, Saunders & Uhlenhop, L.L.C., Chicago, Illinois and a member of the Illinois State Bar Association. The opinions expressed in this article are the individual views of the author, but not the views of the ISBA or the firm of Lawrence, Kamin, Saunders & Uhlenhop, L.L.C., its clients, its other members or attorneys.

1. It also triggered the unprecedented actions of the State Legislature that resulted in the first impeachment of an Illinois Governor, pursuant to the provisions of the Illinois Constitution.

2. As of the writing of this article, several Illinois House Republicans have even called for investigations as to whether Mr. Burris’s omissions at the time of his testimony amount to perjury.

3. The Seventeenth Amendment, ratified by the required number of States on April 8, 1913, was designed to create a uniform method of selecting Senators. Under the Constitution, the responsibility for selecting United States Senators was placed upon the state legislators. This proved to be a controversial provision. There were numerous attempts to change the method of selection, but they were aborted by the Senate until 1911 when the Senate’s earlier hostility or indifference to a constitutional amendment was finally overcome. For a detailed analysis of the historical background of this change, see Trinsey v. Pennsylvania, 941 F.2d 224 (3rd Cir. 1991).

4. Article XVII of the United States Constitution.

5. Trinsey, 941 F.2d 224 (3rd Cir. 1991) (citing prior court opinions interpreting the Seventeenth Amendment through its “natural meaning”).

6. Advisory Opinion to Governor, 157 Fla. 885 (1946) (citing to Paine, Law of Elections, p. 355, par. 421; Oxford English Dictionary).

7. Trinsey, 941 F.2d 224 (3rd Cir. 1991) (holding that the manner in which nominees are selected has been left to the discretion of the states and further holding that the Seventeenth Amendment has invested the state legislature with discretion to direct the manner in which the vacancy election is to be conducted).

8. The term “representatives in Congress” is defined elsewhere in the Illinois Election Code. See e.g., 10 ILCS 5/7-4(5) (for purposes of making nominations by political party “The words ‘congressional office’ or ‘congressional officer’, representatives in Congress”); 10 ILCS 5/20-1(6) (for purposes of voting by absent electors in military or naval services “‘Federal office’ means the offices of President of the United States, United States Senator, Representatives in Congress, delegates and alternative delegates to the national nominating conventions, and candidates for the Presidential preference primary). Because the General Assembly chose to use the phrase “representatives in Congress” rather than the term “Senator” (which has been specifically denoted elsewhere), the legislature chose to limit the temporary appointee to a maximum term of two years, until the next Congressional election. See State Farm Mut. Auto. Ins. Co. v. Illinois Farmers Ins. Co., 226 Ill.2d 395, 402; 875 N.E.2d 1096, 1100 (2007) (The language used in a statute is always afforded its plain and ordinary meaning).

9. Id.; see also, In re C.W., 199 Ill. 2d 198, 211 (2002) (where statutory provisions are clear and unambiguous, the court must give effect to the statute as written, without reading into it exceptions, limitations, or conditions the Legislature did not express). 

10. Or, at the very least, require more than the special election for a single Congressional office.

11. Though the law would become effective thereafter without a veto. Ill. Const. 1970, art. IV, § 9.

12. Black’s Law Dictionary 459 (Sixth Edition 1990).

13. Trinsey, 941 F.2d at 235 (“[The legislature] has been given the discretion by the Seventeenth Amendment to direct the manner in which the vacancy election is to be conducted”).

14. Id. at 234 (further stating “Not only does the proviso state that the state legislature “may” empower the executive to make temporary appointments but, in language which itself could be deemed dispositive of the issue before us [whether state law could preclude a primary election to fill a vacancy], it also states that those interim appointments will continue until filled by election “as the legislature may direct.”)

15. The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, art. VI, §2; see also, United States v. La., 225 F. Supp. 353 (E.D. La. 1963) (Federal constitutional provisions regarding elections and voting trump state law, including state constitutions).