Burris seeks ballot spot
on Sep 10, 2010 at 5:58 pm
Illinois Democratic Sen. Roland W. Burris, who temporarily holds President Obama’s former Senate seat, on Friday asked the Supreme Court to block a federal judge’s order that will keep him off the Nov. 2 ballot to fill out the two months remaining in that term. Under a highly unusual arrangement, Illinois voters on Nov. 2 will cast two separate votes for the Senate: one to fill out the existing term, which ends on Jan. 3, and one to pick a senator to serve a new six-year term starting Jan. 3. The separate choices, though, will be on the same ballot.
Burris’ application for a stay (Burris v. Judge, 10A272) raised no objection to the two separate methods of electing a senator, but rather targeted a federal judge’s ruling on Aug. 2 that resolved who should be allowed to vie for the replacement role.  U.S. District Judge John F. Grady said the only candidates who could seek that position are those that already had qualified to run for the full six-year term. Burris did not register for the election, apparently expecting that he would continue to serve out the Obama term until it ends when the new Congress assembles in January. Now, to do that, he would have to get on the special election section of the ballot, and win.
Under Judge Grady’s order, Burris could remain in the Senate only until the new replacement senator is formally named after a canvass of the votes, and then takes the oath of office. The judge specified that state election officials should count the replacement senator ballots quickly and certify them before Thanksgiving.
The Illinois lawmaker’s lawyers, in filing their plea with Justice Stephen G. Breyer, Circuit Justice for the Seventh Circuit, said that they would file a petition in the Supreme Court to review Judge Grady’s injunction within the next 72 hours. They also have an appeal pending in the Seventh Circuit Court. Justice Breyer has the authority to rule on the application alone, or to share it with his colleagues on the Court.
Burris was chosen to replace Obama and began serving on Jan. 15 of last year. He has indicated that he would not seek a full six-year term after his temporary selection ran out.  The state’s senatorial election arrangements have been in a state of legal uncertainty for more than a year, after two Illinois voters went to court to demand that a temporary replacement had to be chosen by the voters of Illinois, and to have a special election well before the next scheduled congressional election, which is to be Nov. 2 of this year.
In a complex ruling this past June 16, interpreting the Constitution’s Seventeenth Amendment (which provided for direct election of U.S. senators), the Seventh Circuit ruled that Illinois had to call a special election even though the governor had appointed Burris to the Senate. The state’s governor in late July designated Nov. 2 as the date, coinciding with balloting for the new six-year term.
The Seventh Circuit had left it up to Judge Grady to decide who would be eligible to run for the replacement role, saying that issue was not before it in the first round of the legal dispute. Judge Grady then examined the options, and opted to limit the candidates to those who already had qualified for the six-year term election.
Burris’ constitutional challenge opened with this argument: “Absent swift intervention, Illinois citizens who cast a ballot in the November 2 special election to complete the last two months of President Barack Obama’s vacated Senate term will earn the dubious distinction of becoming the first voters in the history of our federalist republic to elect a United States Senator from a pool of candidates selected by a member of the federal judiciary.” Burris’s constitutional argument is, basically, that the Seventeenth Amendment gives the choice of how congressional candidates are to qualify for the ballot to state legislatures, not to a federal judge.
