Burris says state attorney general wrong, hints at running in 2010
SPRINGFIELD - Illinois Attorney General Lisa Madigan has misinterpreted the Constitution and the General Assembly would violate federal law if it ordered a special election to replace Democratic U.S. Sen. Roland Burris, his attorney said Friday.
"I encourage you to take a second look at your analysis before the General Assembly wastes millions of tax dollars on an unlawful election," Burris attorney Timothy W. Wright III said in a letter to Madigan obtained by the Daily Herald.
On Wednesday, Madigan said Burris' appointment to the U.S. Senate is temporary and that the legislature has the power under the 17th Amendment to the U.S. Constitution to order a special election to replace him. Burris was appointed to the Senate by impeached ex-Gov. Rod Blagojevich in December to fill President Barack Obama's vacated seat.
Wright said Burris rejects Madigan's written opinion to state lawmakers permitting a special election. Burris served as Illinois attorney general from 1991 to 1995.
Madigan indicated Friday she disputes Burris' interpretation.
"The legal analysis in his letter does not apply to the current circumstances," Madigan said through a spokeswoman.
In that letter, Burris' attorney all but threatened a lawsuit if lawmakers try to remove Burris.
"Senator Burris' position is clear: the General Assembly will violate clearly established federal law if it creates a special election," Wright said.
Wright argues that federal law requires elections for representatives to Congress be held on the same day throughout the country, specifically the Tuesday after the first Monday in November in even-numbered years.
"The next such date is Nov. 2, 2010, the same day that Senator Roland Burris faces re-election," Wright said, hinting that Burris might run for a full term. Technically, Burris cannot run for re-election since he was never elected to this office.
Wright claims a 1997 U.S. Supreme Court ruling that struck down a Louisiana election scheme that awarded a congressional seat to a candidate if he or she won a majority of the total vote in an open primary held in October applies in this situation. However, the unanimous opinion in Foster v. Love does not address special elections or Madigan's 17th Amendment interpretation.
Part of the dispute hinges on whether Burris' appointment is "temporary." Wright argues it is not. Madigan believes it is. As such, Burris can be replaced at any time by special election, Madigan said.
"A temporary appointee does not possess a 'vested right' to serve as a U.S. Senator until the next congressional election. Consequently, the General Assembly may schedule a special election prior to the next congressional election without interfering with any vested rights," Madigan said in her nonbinding opinion earlier this week.
Lawmakers have several pending proposals that would order a special election to replace Burris. A plan offered by state Sen. Matt Murphy, a Palatine Republican, would have a special primary on April 7, the same day as municipal elections, and special general election May 26.
Gov. Pat Quinn, who said Blagojevich should not have appointed Burris and has called on the senator to resign, said Thursday he wants lawmakers to pass a special election plan in the next two weeks.
The U.S. Senate and a Springfield prosecutor are investigating whether Burris committed perjury. Burris has been accused of lying under oath to an Illinois House committee investigating Blagojevich. Burris' testimony and two written affidavits explaining his contact with Blagojevich insiders ahead of his appointment seem to conflict with other public statements Burris has made.
Burris insists he will not resign and he believes he has done nothing wrong.
The investigations will likely add to Burris' legal bills that a spokesman said already top half a million dollars due to controversy surrounding his appointment. Wright is an attorney with the Chicago firm of Gonzalez, Saggio and Harlan, the same firm that employed Burris until his Senate appointment.