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.
January 9, 2009 at 2:41 pm
Posted in: Constitutional Law, Current Events, Politics
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Responses (14)
A.W. - January 9, 2009 at 5:32 pm
The victory is deeper than that. the decision clearly held that the appointment was good pretty much the moment it was announced. the governor didn’t have to issue a certificate at all, and thus it doesn’t have to be signed at all.
So, he’s the senator. I consider him tainted just for taking the call from Blago, but oh well…
Chris - January 9, 2009 at 6:06 pm
Marburian.
Chris - January 9, 2009 at 11:01 pm
I still cannot believe how so many competent lawyers forget the most basic problem Burris needs to overcome… The governor’s signature on the certificate of appointment is not acknowledged by anyone. Normally, legal acknowledgment would be done by a Notary Public (which are appointees of the Secretary of State, BTW), and then the notary’s signature can be authenticated by the Secretary of State if necessary. This is all the Senate really needs or wants, actually, and I think that is what the judge is trying to say. But, apparently it is even easier… apparently, the record of appointment has been filed with the Secretary of State as required, which means all Burris really needs is a certified copy of the official public record, which will of course be certified by the Secretary of State or his designee.
Burris was foolish to go to Congress with a simple signed certificate lacking any form of legal acknowledgment or certification. Nobody would accept a judge’s signed order without an acknowledgment attached by the clerk, why should the U.S. Senate accept the governor’s appointment without something similar?
vaardvark - January 9, 2009 at 11:43 pm
Suppose, for the moment, the Senate continues to seat Burris for another week. Meanwhile, the Illinois legislature acts on the impeachment and removes Blago, promoting Quinn. Quinn, without hesitation, makes it his first act to appoint a Senator, other than Burris. Reid &co. act swiftly, for a change and seat the guy. Ball back in the court, literally. Now what?
man from mars - January 10, 2009 at 12:55 am
The flaw in the Court’s reasoning is that it is substituting its own evidentiary standards for those of the Senate. The Senate, as the judge of a return, has the authority to determine what evidence it will accept to prove the appointment. What the Illinois Supreme Court views as a proper evidentiary standard is completely irrelevant to the constitutional text.
Chris Jones - January 10, 2009 at 1:15 am
What about 2 USC 1b? It would seem to require countersigning, even if the Senate Rules don’t.
Brian Kalt - January 10, 2009 at 8:21 am
Chris Jones,
Good catch, but that statute covers elections and doesn’t purport to apply to appointments. Given that there is sometimes doubt as to the outcome of elections, it makes sense to require two separate officials to sign off on it. Appointments, not so much. Still, if the Senate still wants to avoid seating Burris, I’d surely expect them to bring up that statute!
man from mars,
As I hope the first sentence in the last paragraph in my post made clear, I think that you are right. But I also don’t think that that flaw undermines the larger correctness of the opinion. The Senate leadership–not the full Senate, in a vote on the question–was suggesting that its rule said something that it didn’t. Now it has a chance to fix that. The final vote will tell the tale.
Chris Jones - January 10, 2009 at 8:29 am
Brian: I’d think that ‘chosen’ as opposed to ‘elected’ makes it at least arguably applicable on textual grounds.
Also, the legislative history that the US Code website gives me claims that:
- section 1 (timing senatorial replacement elections) dates from 1914, while
- sections 1a & 1b date from 1866
… which seems suggestive that ‘chosen’ should not be read as synonymous with ‘elected’ in those two sections.
Brian Kalt - January 10, 2009 at 11:05 am
I’m not convinced. Textually, the statute says “chosen” only in reference to the state. The operative phrase (and title of the statute) is “certify his election.” The statute is about certifying, and the object of the verb “certify” is “election.”
As for the timing, I’m not sure what that has to do with anything. Before the 17th Amendment, senators were elected (by the legislature) and governors filled vacancies (when the legislature was in recess). So 17A would not have necessitated any change in the phrasing here.
Chris - January 10, 2009 at 11:30 am
The Illinois judge made a pretty good decision and considered even the Senate rules. The Senate rules don’t explicitly require the Governor or the Secretary of State to sign the certificate, rather they just require the Senate to record their names (if they did sign it). The Senate leadership and/or administration is unlawfully preventing the Senate from considering and judging Burris’s certificate for what it is, and in so doing preventing the State of Illinois from having its full representation in the Senate. Not a pretty picture.
The 17th amendment specifies that state law shall determine how temporary vacancies may be filled by the state’s executive authority. For example, suppose state law instead said the state’s attorney general shall make the appointment of the Senator’s vacancy. Now are we saying the Senate could reject this as a legal appointment of a Senator? The issue hasn’t comke up because every state has designated the Governor as the appointing authority, but my point is the state doesn’t have to do it that way, and the Senate leadership has to come to terms with the fact that Congress is a forum of state delegates, not an independent federal institution that can control who may be admitted as a member. I already asked Senator Reid if he would consider rejecting all the certificates for undesirable Republican Senators under the same arguments he is using for Burris, so that the Democrats can ursurp absolute control of the Senate going forward.
The next step for Burris, as I see it, is to get a certified copy of his appointment from the Secretary of State and submit that to the Senate. If the Senate rejects that too, a U.S. Supreme Court mandamus against the Senate will be in order next, and there Burris will win big time and the Senate administration will be admonished big time.
Finally, I disagree a new governor would be able to make a new appointment. Under Illinois state law, there is no U.S. Senate vacancy. As far as I am aware, appointments as a temporary U.S. Senator cannot be revoked by the governor (or a new governor), as they are only temporary until next election of Representatives. To remove Burris, the new Illinois governor would have to explore those waters, and if successful after Burris is seated, the U.S. Senate will have another headache to deal with as far as expelling Burris under its rules in order to open up the seat for his replacement. We don’t really want to go there, do we?
Parenthetical - January 10, 2009 at 2:43 pm
I’m not convinced that the Senate was pretending here. Rule II, paragraph 2 compels the Secretary of Senate to enter the name of the countersigning SoS in the appropriate journal.
By precedent (not rule) when a state uses a form of certificate other than the suggested one, the presiding officer will advise the Senate as to whether the form contains “all the requirements of the form suggested by the Senate.” Traditionally, the presiding officer makes that assertion based on the Secretary’s advice. Given the words in Rule II, the Secretary certainly would note her inability to enter the countersigning official’s name.
Of course, the Senate has resolved (when at least majority concurs) to accept or “correct” a certificate that departed from the requirements. The Senate has even resolved to seat a Senator in the absence of a certificate, when the Senate was satisfied that one was en route. All of this was done, however, under the power to judge a “Return.”
Regardless, the Illinois court’s opinion was, on the whole, well grounded.
Brian Kalt - January 10, 2009 at 2:58 pm
Parenthetical,
Your information on the precedent is helpful–thanks.
How about this for evidence of pretending? The AP article I linked quoted Senator Durbin, the #2 Senate Democrat, as saying “Everyone has to present a certificate, signed by the governor, co-signed by the secretary of state — never been waived in the history of the United States Senate.”
As for paragraph 2 of the rule, you are right that it says that, but it doesn’t say anything about what happens to the would-be senator if part of the record is left blank. And in any case, as I think we agree, the precedent you mention shold easily allow Burris to be seated.
Parenthetical - January 10, 2009 at 3:37 pm
Point taken (with a healthy chuckle). Senator Durbin’s “truthiness” is shared by many. The Dem leadership as a whole has handled this horribly.
Many Senate precedents support the seating of Burris. Of course, there are examples to the contrary too.
The kerfuffle over the signature is, in substance, silly.
Howard Wasserman - January 11, 2009 at 4:35 pm
vaardvark:
Burris sues the Senate sergeant-at-arms, likely in federal court seeking a declaratory judgment that he should be seated and, perhaps, an injunction to that effect. He also might sue Quinn’s appointee (call him “Not Burris”); alternatively, Not Burris intervenes as a defendant, having an interest in the case that cannot otherwise be protected.
Then the court has to figure out what to do with various dicta and language in *Powell* and the political question doctrine. Procedural posture matters, so I am inclined to predict that in this posture of competing claimants to the seat, the courts ultimately will hide behind P/Q/D.
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