GOP thinks a special Senate election possible

SPRINGFIELD - In what could amount to a backdoor recall of beleaguered U.S. Sen. Roland Burris, Republican lawmakers on Thursday touted a potential loophole allowing Illinois to still hold a special election to fill the Senate seat vacated by President Barack Obama.

Gov. Pat Quinn also will address the idea of a special election at a news conference today, though he would not share details of his plan late Thursday. "I think it'll be a plan that makes sure the Senate seat belongs to the people of Illinois," Quinn told reporters outside his Capitol office.

For Republicans, the key to their plan lies in the 17th Amendment to the U.S. Constitution, which explains what happens if a Senate seat becomes vacant. "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," the amendment reads.

Illinois law gives that temporary appointment power to the governor. "The Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress," according to statute. That means Burris' term should run until shortly after the November 2010 elections.

But the amendment's use of the words "may empower" leaves it up to the legislature whether to make such a law in the first place. That means the legislature could take that appointment power back, some experts said.

And, since the provisions of the U.S. Constitution take precedence over state law, Republicans claim the legislature has the power to order an election even after Burris has begun to serve.

"It would be the constitutional equivalent of a Hail Mary pass, but desperate times call for desperate measures," wrote Garrett Epps, a law professor at the University of Baltimore, who first pointed out the loophole on the political news and opinion Web site Salon.com.

Burris could try to stop the legislature by rushing to court, but there is no specific case law addressing such a situation and courts might be reluctant to weigh in on a political question, Epps wrote.

"I really think there is a sound basis in law to do it, and it's absolutely the right thing to do to have the election," said state Sen. Matt Murphy, a Palatine Republican.

To reduce costs, Republicans suggested holding the special Senate primary on April 7, the same day as municipal elections, and the special election May 26. Burris would be allowed to run if he wanted to, Republicans said.

But suburban Democrats didn't think a special election was likely to happen.

"We can't backdate our laws and undo what was done under a perfectly legal statute at the time," said Rep. Elaine Nekritz of Northbrook.

"It's a pretty dangerous precedent. I don't think it has a lot of credibility," agreed Marengo Rep. Jack Franks.

"We could change the law prospectively, but we don't really want to go down that path of retroactively changing laws," said Nekritz, chairman of the House Elections Committee. Franks has introduced a proposal requiring a special election to fill any future Senate vacancy.

In 2000, Republican lawmakers in Florida considered a legislative workaround when it looked like George W. Bush might not win that state's contested presidential election.

Article II of the Constitution gives state legislatures the power to decide how a state's presidential electors are chosen; all states give that power to voters. But some in the Republican-majority Florida legislature wanted to reassert the power of the legislature to choose electors, which would have ensured Bush won Florida. The U.S. Supreme Court stepped in before this plan was implemented

But in its Bush v. Gore decision, the Supreme Court asserted such a maneuver would be constitutional.

In December, Illinois lawmakers considered but did not order a special election to stop then-Gov. Rod Blagojevich from filling the Senate vacancy. Blagojevich appointed Burris on Dec. 30. Blagojevich was removed from office for abuse of power on Jan. 29, six weeks after his arrest on federal corruption charges.

Burris is alleged to have lied under oath to a House committee investigating Blagojevich and is currently under investigation by a Springfield prosecutor and the U.S. Senate ethics committee.

Loophole: Suburban Democrats don't find election likely

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