Progress Illinois

The controversy over Sen. Roland Burris' appointment to Illinois' junior senate seat may seem like a lifetime ago. But a group of well-known local attorneys is making a last-ditch effort to force Gov. Pat Quinn to call  a special election, thus giving the public the final say about who represents them.

Today, former alderman Marty Oberman led the oral arguments for his team of co-counselors -- which includes Tom Geoghegan, Scott Frankel, and Rob Cohen -- in a federal appellate court. The appeal is based on the same case that the team argued before U.S. District Judge John F. Grady earlier this year. Regular readers may recall that the challenge was an effort to force Quinn to issue a “writ of elections,"  which would trigger the General Assembly to set a special election date.

The gist of the case, Oberman tells us, is that the 17th Amendment of the U.S. Constitution was crafted to guarantee the electorate's right to choose its representation democratically. That, the plaintiffs argue, usurps state law, which grants the governor appointment powers.

"The purpose of the 17th Amendment was to have popular elections of senators," Oberman argued in court today.  "It wasn't to have appointments." 

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In yesterday's Tribune, columnist Steve Chapman pointed to an astounding statistic: by the end of 2009, 27 percent of Americans will be represented by U.S. senators who didn't earn a single vote in a free election. That's because four of those 100 officials were appointed to fill seats vacated by a politician who switched jobs, including the president. With the impending retirement of Sen. Mel Martinez (R-Florida) and the decision by Sen. Kay Bailey Hutchison (R-Texas) to leave her post this year to run for governor, two more appointees will make their way to Washington by year's end. As Chapman jokes, the nation's upper chamber "is ... well, mostly elected by the people."

But Chapman also noted a positive development. Next month, the 7th Circuit U.S. Court of Appeals will hear a lawsuit filed by labor lawyer, author, and former 5th Congressional District candidate Tom Geoghegan arguing that when a Senate vacancy occurs, any appointee may only serve for a short interim before an election must be held. Here's how we described the case back in February:

The plaintiffs claim that neither former Gov. Rod Blagojevich nor [Gov. Pat] Quinn issued a “writ of elections to fill senate vacancies” as required by the 17th Amendment of the U.S. Constitution. Currently, Illinois follows a legal proviso in the amendment that allows the governor to “make temporary appointments until the people fill the vacancies by election as the legislatures may direct.” Geogeghan and his colleagues are not suggesting that Burris’ appointment was illegal—rather, it represents a temporary placeholder until the state could marshal the resources to hold a statewide election. (Geogeghan first laid out this argument in a New York Times op-ed published a few days after Burris’ appointment in January.)

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Despite their best efforts to bury a proposal to call a special election to fill the U.S. Senate seat vacated by Barack Obama, the failure to do so continues to haunt Illinois’ Democratic Party leaders who now have a legal case with a high-profile defendant on their hands: Sen. Roland Burris.

During a hearing yesterday on the recent lawsuit that seeks to force Gov. Pat Quinn to call a special election, a cautious U.S. District Judge John F. Grady said he was too “nervous” to move forward without giving Burris the chance to weigh in as a party in the case. Citing Rule 19, Grady told the parties on hand that, without Burris, “you don’t have a full case here.”

The plaintiffs—co-counsels Tom Geoghegan, Scott Frankel, Rob Cohen, and former alderman Marty Oberman—appeared to welcome the decision. But not everyone was thrilled. “We would rather stay away,” Burris’ rather candid attorney, Tim Wright, told us before the court hearing at the Dirksen Federal Center.

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