Roland Burris Loses, Wins in Illinois Court
posted by Brian Kalt
Things are moving quickly today in the case of Roland Burris’s appointment to the Senate. Illinois Governor Rod Blagojevich was impeached by the Illinois House today, but he still hasn’t been convicted and in any case his appointment of Burris had long since been issued.
Burris wasn’t seated by the Senate on Tuesday because his credentials were not signed by Illinois Secretary of State Jesse White. Burris sought a writ of mandamus from the Illinois Supreme Court, arguing that White had no discretion to refuse to sign the appointment document. Today, however, the Illinois Supreme Court denied Burris’s request. You can read the opinion here.
I was wrong—I had confidently predicted that Burris would win his case. But while he lost on his mandamus request, the Illinois Supreme Court made a strong statement that he should be seated by the U.S. Senate. Hopefully the Senate will take the court’s rebuke to heart.
Burris’s mandamus request was denied because, as the court explained, he didn’t need it. As the court put it:
No further action is required by the Secretary of State or any other official to make the Governor’s appointment of Roland Burris to the United States Senate valid under Illinois law. Moreover, to the extent that additional proof of the validity of the appointment is necessary, Illinois law provides a mechanism for obtaining it without the need for judicial intervention.
In other words, the court ruled that the Secretary of State didn’t need to sign the document because Burris’s appointment is already valid and legal without the signature. White had already registered the appointment. The court noted that Burris can get certification of that, suggested that he do so, and chastised the Senate for keeping Burris out.
This turned my attention back to the Senate Rule under which Burris was kept out in the first place. I was not sufficiently skeptical about Senator Reid’s and Senator Durbin’s statements about the signature requirement, which surprises me, since as a rule I don’t trust senators, let alone Senator Reid. Even more surprising is that the AP was sufficiently skeptical, in this article.
It turns out that Senate Rule 2, the one at issue here, does not make the signature mandatory. All it does is provide a “recommended” form; the state “may use such forms if they see fit.” But since, as the Illinois decision today made clear, Burris can come to the Senate with other evidence that (1) the governor has appointed him, and (2) the secretary of state has validated that appointment, the Senate has no basis to exclude Burris on grounds that his appointment was not legally, formally sufficient. I’ll close with the court’s language that essentially tells the Senate that it should seat Burris:
At this point, however, there is no question at all that the Governor did, in fact, make the appointment. If there was ever any question about that on the part of the United States Senate, it should have been removed when the Governor’s envoy appeared at the Senate with a copy of the certificate of appointment in hand.
In their pleadings, Petitioners suggest that the United States Senate has taken the view that the Governor’s signed, hand-delivered certificate of appointment is insufficient to meet the requirements of the Senate’s own internal rules. We note, however, that nothing in the published rules of the Senate, including Rule II, appears to require that Senate appointments made by state executives pursuant to the seventeenth amendment must be signed and sealed by the state’s secretary of state. Moreover, no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supercede the authority to fill vacancies conferred on the states by the federal constitution. Under these circumstances, the Senate’s actions cannot serve as the predicate for a mandamus action against the Secretary of State.
I think that the court’s language went a bit too far here—the Constitution does make the Senate the judge of the “return” here; the problem is just that the Senate pretended its rule said something it didn’t. But the court’s larger point is right. Given that the Senate leadership had given strong indications that it was ready to let Burris be seated, I hope that they take the hint from the Illinois Supreme Court and seat Burris.