Judge v Quinn

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2219G

ERALD

A.

J

UDGE

and

D

AVID

K

INDLER

,

Plaintiffs-Appellants,v.

P

AT

Q

UINN

, Governor of the State of Illinois, andR

OLAND

W.

B

URRIS

, U.S. Senator,

Defendants-Appellees.

Appeal from the United States District Courtfor the Northern District of Illinois, Eastern Division.No. 09 C 1231

—

John F. Grady

,

Judge

.

A

RGUED

S

EPTEMBER

17,

2009

—

D

ECIDED

J

UNE

16,

2010

Before R

OVNER

,

W

OOD

,

and T

INDER

,

Circuit Judges.

W

OOD

,

Circuit Judge.

Constitutional specialists and U.S.history buffs will recall that the original Constitution of1787 took a cautious approach toward the election ofpublic officials. It interposed the Electoral College betweenthe voters and the President, U.S.

C

ONST

. art. II, § 1, andit provided that each state’s two senators would be

Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40

2No. 09-2219chosen by the state legislature, U.S.

C

ONST

. art. I, § 3.“Judges of the supreme Court” were to be appointed bythe President, “by and with the Advice and Consent ofthe Senate.” U.S.

C

ONST

. art. II, § 2. Only the members ofthe House of Representatives were to be “chosen . . . by thePeople of the several States.” U.S.

C

ONST

. art. I, § 2.In 1913, the Seventeenth Amendment to the Constitu-tion effected a fundamental change in the legislative branch of government by providing for the direct electionof senators. The amendment also changed the rules forfilling vacancies in a state’s senatorial delegation. Underthe original Constitution, the executive authority of thestate could make a temporary appointment, whichwould last until the next meeting of the legislature. TheSeventeenth Amendment modified that process, toreflect the fact that, in principle, senators were to beelected by the voters. The relevant language is as follows:When vacancies happen in the representation of anyState in the Senate, the executive authority of suchState shall issue writs of election to fill such vacancies:

Provided

, That the legislature of any State may em-power the executive thereof to make temporary ap-pointments until the people fill the vacancies byelection as the legislature may direct.U.S.

C

ONST

. amend. XVII para. 2. That passage may lookstraightforward, but this appeal has demonstrated thatthere is more to it than meets the eye. We must decidewhether the system that Illinois is using to fill a famousvacancy in one of its senate slots has strayed so farfrom the mark that a preliminary injunction should

Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40

No. 09-22193have been entered by the district court. We concludethat the district court did not abuse its discretion inrefusing the requested injunction, and we thereforeaffirm its order.

I

AOur case began after Barack Obama, then the juniorsenator from Illinois, won the presidential election onNovember 4, 2008. The next week, President-elect Obamawrote to Rod Blagojevich, then the governor of Illinois,announcing that the President-elect would resign hisposition in the U.S. Senate, effective November 16, 2008.Two years and 48 days remained in his six-year term atthe time of his resignation. The President-elect’s resigna-tion created an immediate vacancy in one of Illinois’stwo senate seats. On December 31, 2008, then-GovernorBlagojevich named Roland Burris, a former AttorneyGeneral of Illinois, to assume the Obama seat. A certificateof appointment signed by the governor said that theappointment was to last “until the vacancy . . . caused bythe resignation of Barack Obama, is filled by election asprovided by law.” Mr. Burris took the oath of office onthe Senate floor on January 15, 2009.In the meantime, the Illinois House of Representa-tives voted to impeach Governor Blagojevich; it returneda wide-ranging article of impeachment alleging that thegovernor had abused his powers, including his power toappoint a U.S. Senator. On January 29, 2009, the Illinois

Case: 09-2219 Document: 23 Filed: 06/16/2010 Pages: 40