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OFFICE OF THE ATTORNEY GENERAL, STATE OF ILLINOIS Lisa Madigan AVVORNEY GENERAL. February 25, 2009 FILE NO. 09-001 CONSTITUTION: Senatorial Vacancy under the Seventeenth Amendment The Honorable John J. Cullerton ‘The Honorable Michael J. Madigan President of the Senate Speaker of the House State Senator, 6" District State Representative, 22" District 327 Capitol Building 300 Capitol Building Springfield, Illinois 62706 Springfield, Illinois 62706 ‘The Honorable Christine Radogno The Honorable Tom Cross Minority Leader House Republican Leader State Senator, 41* District State Representative, 84" District 309A Capitol Building 316 Capitol Building Springfield, Illinois 62706 Springfield, Illinois 62706 Dear President Cullerton, Speaker Madigan, Leader Radogno, and Leader Cross: The Illinois General Assembly is currently considering a number of proposals to amend the law addressing the process for filling a vacancy in the position of United States Senator (U.S. Senator). We have received a number of inquiries specifically concerning whether the General Assembly may pass a law authorizing the setting of a special election to allow the people of Illinois to elect a successor to the seat vacated by President Barack Obama. For the 50 South Second Street, Sprngick, iawn 62706 (217) 782-1060 # “TTY: (217) 785-2771 # Fax: (217) 782-7046 100 Wet Randph Stet, Chicago, Minors OGD) » (512) 14-3000 « THY: (S12) SH-3574 « Bax (312) SE:3800 1001 Ease Maun, Carbondale, Mins 62901 + (O18) 329.0400 © TTY: (G16) S2-0H03 * Fax-(O18)S2HOH10 “De reasons stated below, it is my opinion that neither the Federal Constitution nor the Illinois Constitution prohibits such a law. Indeed, a law providing the people of Illinois with an opportunity to elect a U.S. Senator would be entirely consistent with the purpose and text of the seventeenth amendment. That amendment announces a clear preference for selecting U.S. Senators by direct popular election. It is well within the legislature's power to consider and enact changes to the current law to specify an earlier date for the election. In an effort to provide guidance as you consider this issue and how to draft such a bill, I offer the following legal analysis. BACKGROUND In November 2004, Barack Obama was elected to the United States Senate (U.S. Senate) from Illinois. His term of office was six years. U.S. Const. art. I, §3; amend. XVIL Following the November 2008 general election, a majority of the members of the Electoral College voted in favor of Barack Obama for the office of President of the United States. On January 20, 2009, Barack Obama was swom in as President. In anticipation of assuming the presidency, President-elect Obama resigned his U.S. Senate seat effective November 16, 2008, thus creating a vacancy in that office. See 10 ILCS 5/25-2(2) (West 2007 Supp.) Although the United States Constitution (U.S. Constitution) originally empowered state legislatures to select U.S. Senators (U.S, Const. art. 1, §3), the seventeenth amendment creates a system of direct election "by the people" of each state. U.S. Const. amend. XVI. The amendment's second paragraph addresses the filling of vacancies and provides: 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. (Emphasis in original.) U.S. Const. amend, XVIL Pursuant to this constitutional authority, the Illinois General Assembly authorized the Governor to make temporary appointments to the office of U.S. Senator. See 1913 Ill. Laws 307, 308, now codified at 10 ILCS 5/25-8 (West 2006). Section 25-8 of the Election Code (10 ILCS 5/25-8 (West 2006)) provides: When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress[.] ‘On December 31, 2008, Rod R. Blagojevich, then the Governor of Illinois, exercised his authority under section 25-8 and temporarily appointed Roland W. Burris to fill the USS. Senate seat previously held by President Obama, The Governor's certificate of appointment provides that he appointed Mr. Burris to represent Illinois in the U.S. Senate "until the vacancy * * * caused by the resignation of Barack Obama, is filled by election as provided by law." President Obama's U.S. Senate term would have concluded in January 2011 following an election in November 2010. Under the current language of section 25-8, U.S. Senator Burris's temporary appointment will conclude in January 2011 following an election in November 2010, the next election of representatives in Congress. See 10 ILCS 5/2A-1.2 (West 2006). Members of each legislative caucus have filed bills addressing special elections to fill a vacancy in a U.S. Senate seat, and we have received numerous inquires about the legislature's authority, under the U.S. and Illinois constitutions, to change the current law. ‘The