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.

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