Much is being made of the possible special election that a federal court may force upon Illinois to fill the vacancy created by the Presidential election of Barack Obama.   I wrote last week about how that could be done for little to no cost.

However, another problem raised by opponents of the special election needs to be addressed,  the short period of time in which the Senator would serve.  In determining the length of that time, people are using the final canvass of votes as the determinant for when the new Senator would take office.

There is precedent though for the presumptive winner of  a special election to be sworn in before the final canvass is conducted.  In 2008, Bill Foster was elected on March 8 to fill the vacancy created by the retirement of Denny Hastert.  He was sworn in just 3 days later, despite the official canvass not happening for weeks afterward.

The minutes of the March 7, 2008 State Board of Elections meeting give some idea of the reasoning.

Discussion then moved to the request from the Clerk of the U.S. House of Representatives for unofficial election results of the March 8 special election. Member Brady indicated that he spoke with the Clerk’s office and it is their practice to evaluate unofficial results. If it is clear from the unofficial results who the victor is they would act immediately and seat the member. However, if it is a close election and they were unable to determine the results the Clerk’s office would not act on unofficial results.

If the same process were to be followed in the Senate, a special election winner in November could be seated by the end of election week.

In December of last year and March of this year, I wrote about the suggestions from many that the National Voter Registration Act (NVRA), passed in 1993, disallows removals from the voter file based on a match within the statewide voter registration file created by the Help America Vote Act (HAVA), passed in 2002.  It’s a weak argument, that to date has been pushed mostly by voter registration reform groups.  Now, however, the United States Department of Justice is jumping on this bandwagon as detailed in this undated and unsigned memo that appears on their website (to which I was pointed by the electionline newsletter in early June).  Adherence to the shaky legal interpretations of the memo would eviscerate any fraud protection passed by Congress in 2002.

The first thing that should be mentioned about the latest DOJ memo is the last item in the memo.

46. How can I contact the Department of Justice about the NVRA’s voter registration requirements?
As a general matter, the Department of Justice does not issue advisory opinions concerning the statutes that it enforces.

The 45 items before this, however, are nothing but an advisory opinion.  As an advisory opinion though, it is short on analysis and hardly fit for any legal department, especially the chief law enforcement agency in our country.

It is hard to avoid the notion that DOJ is offering up a shallow legal opinion to prop up the overall agenda of many people, which is to worry less about the integrity of our voter registration rolls and more about making sure that everyone is on them, no matter how many times.

The list maintenance section of the DOJ memo starts at number 26.  Sections 30, 31, 34, 35 and 36 are all flawed and largely ignore the list maintenance provisions in the Help America to Vote Act.  For example, item 31 of the DOJ memo states that new applications in another jurisdiction only trigger a removal in the former jurisdiction if the registrant provides information about the fact of registration in the former jurisdiction.  That’s not what happens in practice, nor was it what was intended with HAVA.  In fact, the statewide voter registration file was established precisely to eliminate the problem of voters not informing the former jurisdiction of their address change.  The 18 page DOJ memo mentions the HAVA required statewide voter file just once and that is only regarding deaths and felony convictions.  It is as if Congress had done nothing.

However, over the last five years, DOJ has entered into a number of memoranda of understanding regarding list maintenance.  I detailed some of them in a post in December.  As an example, here is the procedure for removing duplicate registrations in California.

§20108.60. Duplicate Registration Records. (a) Beginning January 1, 2006, the Secretary of State shall conduct weekly checks within the Calvoter statewide registration list to identify potential duplicate registrations for the same voter within that list, based on established rotating criteria. Upon identification of potential duplicate registration records, the Secretary of State shall automatically send an electronic notice to the county with the record that has the oldest date of registration.
(b) Within five (5) business days of receipt of a notice of potential duplicate registration the elections official shall take all necessary steps to determine whether or not the registration record is a duplicate of an existing newer registration, and if a duplicate registration is confirmed, shall cancel the older duplicate registration and submit a registration update file or full load file to Calvoter in accordance with Section 20108.15 and Section 20108.40.

If list maintenance procedures for election officials are to be based solely on NVRA, there was essentially no reason for Congress to mandate the statewide voter file.  I doubt that a single state administers their statewide voter file in a way that meets the standards laid out by DOJ in this recent memo.  Following DOJ’s guidelines would raise costs dramatically and probably inflate the voter rolls by millions.  In Illinois, over 200,000 voters have been removed through the statewide voter file.  Without the statewide voter file, those nonvoters would still be on the voter rolls at a cost to taxpayers and with a potential risk for fraud.

I didn’t catch this case coming through the federal courts. It’s interesting, largely unimportant for voters, very important for taxpayers, and adds to the zaniness surrounding the filling of the U.S Senate vacancy created when Barack Obama was elected President.

What has now happened is that in response to a filing by Marty Oberman in Chicago, the U.S Appellate Court has ruled that there must be an election to fill the months remaining in the Obama Senate term between the November election and the swearing in of U.S. Senators in January of 2011, a period of just two months.  Here is the opinion. Incredibly, it will likely be far less than two months as the State Board of Elections is not likely to announce an official winner of the race until late November.

This could have been avoided if Illinois had just adopted something like the Pennsylvania Senate vacancy process and nominated candidates at party caucuses and elected someone at the April 2009 Consolidated Election.  Instead, the circus goes on.

Hopefully, the U.S.  District Court will treat this in a reasonable way and declare that this is a vacancy occurring after the Primary and allow political parties to make nominations per 7-61 of the Election Code.

Any vacancy in nomination under the provisions of this Article 7 occurring on or after the primary and prior to certification of candidates by the certifying board or officer, must be filled prior to the date of certification. Vacancies shall be filled by the officers of ….. State central committee in the case of a candidate for statewide office, including but not limited to the office of United States Senator) of the respective political party for the territorial area in which such vacancy occurs.

Alternatively, the judge could possibly order a special primary election, likely sometime in September, which would cost millions and possibly create delays in the production of ballots for the November election.

I personally would find this second option to be an overreach by the Federal Judiciary.  While the argument is strong that interpreting what constitutes a vacancy is within the federal purview, a stronger argument can be made that the “how” of filling this vacancy is left with state authorities.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies:  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.

Put another way, a judge should examine the law and, if he can find a reasonable interpretation of the law that satisfies the requirement of a higher court ruling, he should adopt it.  Treating this as a vacancy in nomination after the primary maintains the authority of the General Assembly as granted in the 17th amendment above.

In fact, if a special primary election would be held, it is all but certain that military ballots would not go out in time to meet the new standards set up by the MOVE Act.

It could also be argued, persuasively, that a simple tweak to the Election Code could clarify this issue for this election.  That would require a special session, but the cost of that vs. the cost of a special primary is not even close.  If Judge Grady, at the U.S. District Court, tries to take the authority for this process away from the legislature, the legislature should wrest it back and save taxpayers the money of the special election and not imperil the November election, especially the votes of those overseas.