Monday, January 05, 2009

A constitutional morass?

Sandy Levinson

I gather that the current argument being made by Harry Reid and others is that the Senate can reject Burris because of a Senate rule that requires that a state's secretary of state sign the certificate of appointment. The Illinois secretary of state has refused to do so, presumably as an act of personal civil disobedience inasmuch as no legal grounds have been offered. See, e.g., the following dispatch:

A spokesman for Illinois Secretary of State Jesse White (D) confirmed to Election Central that White knows he does not truly have the authority to stop the appointment of Roland Burris to the Senate, but he withheld his signature from it earlier today in order to make a statement. But the door does appear to be open to some legal ramifications.

"His feeling is we studied the constitution of Illinois, we looked at the statutes, and there was nothing there that said he had to sign the paperwork," said David Druker, White's press secretary.

"We don't believe he has the authority to hold up the appointment or veto it, to put it that way," Druker added. "How the U.S. Senate views the action, that would be for the U.S. Senate to determine."

Assuming that the Senate does have a rule requiring the secretary of state's signature, why wouldn't that violate the 17th Amendment by adding a "qualification" nowhere mentioned in the amendment? The relevant part of the Amendment reads as follows: "When vacancies happen in the representation of any State in the Senate, the executive authority of each 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." It appears that the Illinois legislature has long since passed a statute authorizing the governor to make an appointment, without mentioning anything about a veto right to be given the secretary of state. Or is the failure of Illinois to include a clause saying that "the secretary must sign a certificate" the equivalent of giving him/her a veto right, e.g., the equivalent of saying "the secretary is entitled to decide whether he/she approves of the governor's appointment and, if not, to refuse to sign the certificate?" [SEE UPDATE BELOW, WHICH SEEMS CONCLUSIVELY TO INVALIDATE ANY SUCH READING OF ILLINOIS LAW.] In any event, I do not see where the Senate believes it has the authority to define "the executive" of a state differently from the definition adopted by a state itself.

If one supports the refusal of the Illinois Secretary of State to sign a commission that is lawful on its face, then does this also suggest support for the proposition that the Attorney General could announce a refusal to enforce any laws signed post-arrest by the now-discredited Governor or that the head of the Illinois national guard should refuse to accept any orders by the person who I presume is the "commander-in-chief" of the guard unless it is federalized? If this were really an important issue, and not simply a bit of political entertainment about the relatively meaningless filling of a Senate seat, I think we could start speaking the language of "constitutional crisis" similar to that, say, of the Dorr Rebellion in Rhode Island in the 1840s. But, as Marx noted, first time tragedy, second time farce, so, for better or worse, it's only a "constitutional morass" and what Vermeule and Posner have labeled a "showdown."

UPDATE: A reader has sent me the following passage from Illinois law (15 ILCS 305/5) (from Ch. 124, par. 5):

Sec. 5. It shall be the duty of the Secretary of State: 1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed..... (emphasis added)


2 USC 1b requires the secretary of state of certify the certificate. Perhaps Burris is entitled to state law mandamus against the secretary of state.

Is this an opportunity for a Marbury v. Madison applied to federalism? Reid seems to be relying upon form over substance. On a Sunday morning political program, he mentioned his experience as a trial attorney. He made a wise choice giving that up as he embarrassed himself.

I wonder if all these antics are due to yet another historical accident.

In England at the time of the separation of the original colonies, writs to hold elections were sent out to the constituencies addressed to the "returning officer". They still are to this day. For example, for constituencies in a city or town, the Returning Officer is the Mayor. His officials supervise the election, preside at the counts and tally the ballots. The Returning Officer then publicly announces the result and makes a return to the writ (as usual under seal) certifying the result. No Member can be seated without the writ being returned. A Mandamus lies to compel the return to be made.

So the practice probably grew in the USA that the appropriate state officials would certify the results of elections to federal offices and that the signature of the official should be verified by the Seal of the State. After all, the Seal of a State has some role in the certification of all kinds of public documents - commissions - charters - licences.

Throw off your remaining shackles to medieval English procedure by all means, but these formalities have stood the test of time.

Presumably the duty of the Secretary of State is ministerial and he can be compelled to act if need be.

Get a grip. Giving the Secretary of State the power to control the Senate is one of the stranger ideas of late. However, in a country that willfully subjects itself to the tyranny of a few people on The Supreme Court, I guess anything's possible.

Australia also uses the term 'returning officer' for the main electoral officer in each electoral division. The returning officer has the duty of making a return to the writ of election. When the High Court hears disputed elections it sits formally as the 'Court of Disputed Returns' . These expressions are standard throughout the Commonwealth Pacific. Needless to say, it would be a very brave returning officer who presumed to prevent an election by not signing the paperwork.

Consistent with Mourad's and Alan's posts, I assume the argument is that the S'State's signature is part of the "return", which the Senate can judge defective.

This is not a constitutional crisis. It is near farcical lawlessness in the pursuit of political CYA.

The Dem Senator designate Burris needs to seek a writ of mandamus to compel the Dem Sec State to do is job and then may need to go to federal court to compel the Dem Senate majority leader (who was himself lobbying the corrupt Blago against black candidates and in favor of a couple white female candidates) to seat Burris as the lawful senator.

Do the Dem Sec State and Senate majority leaders really want to air this dirty laundry in front of a court with a gallery of reporters documenting this farce?

I suppose I should mention that Australia has a much more transparent and accountable approach to Senate vacancies.

Section 15 If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens.

Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.

Although our senate was modelled on yours, senators were always popularly elected. The rule on party vacancies was added by referendum in 1978 after two states appointed casual vacancy senators from different parties to the elected senator.

I'm not sure how the Australian practice is so much more "transparent" and "accountable" than our own.

For instance, a state here can set up a special election right away -- a senator chosen by election seems in some ways more "accountable" than one chosen by Parliament ("that House, shall choose a person to hold the place until the expiration of the term").

Also, I assume if the Parliament appoints the temporary senator, any number of reasons can go into the choice. Good and bad. But, if bad, how could they really be accountable? Would the people vote out the lot of them for this reason alone?

And, would we really always know all the reasons? How "transparent" would it be as compared to ours?

I'd say an open election in a parliament beats a private appointment by one individual any time. While US states do have the option of a special election according to the CRS only Oregon and Wisconsin have provided for special elections in all cases.

There are technical reasons why special elections under proportional representation are unfair. People who voted for the continuing senators would have their general election votes count and get to vote again for the special election. People who voted for the vacated senator would not have their general election vote count for anything. Until 1978, special elections were held and could distort the proportional representation of the parties in the senate.

Hasn't it been held in the Article V ratification context that state "legislatures" can be a shorthand for state constitutional governments? In that case, why not let other parts of state governments get in on the act?

(A weird example might include a hypothetical state constitutional amendment that suspended the governor's authorities when the legislature was not in session. Would Blagojevich still have had the authority to make the appointment over Christmas recess?)

A special election "in all cases" would leave the state w/o two senators for the time the election takes. Thus, a placeholder for a short period of time makes sense.

Our Congress does various things in the "open" that in actuality isn't very transparent either. Why was a certain person picked over others? etc.

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