In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2836
G ERALD A. JUDGE and D AVID K INDLER,
Plaintiffs-Appellees,
v.
P AT Q UINN, Governor of the State of Illinois,
Defendant,
and
R OLAND W. B URRIS, U.S. Senator,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 1231—John F. Grady, Judge.
S U BM ITTED S EP TEM BER 22, 2010 — D EC ID ED S EP TEM BER 24, 2010
O PINION P UBLISHED O CTOBER 4, 2010
After an examination of the briefs and the record, we
have concluded that oral argument is unnecessary. Thus the
appeal is submitted on the briefs and the record. F ED . R. A PP .
P. 34(a)(2).
This opinion was issued in typescript on September 24,
2010.
2 No. 10-2836
Before R OVNER, W OOD , and T INDER, Circuit Judges.
W OOD , Circuit Judge. In this appeal, Senator Roland
Burris challenges a permanent injunction entered by
the district court after our decision in Judge v. Quinn,
612
F.3d 537 (7th Cir. 2010) (“Judge I”). That injunction
states that the State of Illinois will hold a special
election on November 2, 2010. In that election, the
people of Illinois will select a permanent replacement to
fill President Barack Obama’s seat in the U.S. Senate for
the remainder of the 111th Congress. Because Novem-
ber 2 is fast approaching and in the interest of a manage-
able election, the district court limited the candidates
who will appear on the ballot for the special election
to those people who are slated to appear on the Novem-
ber 2 ballot in the general election to fill the six-year
Senate term that will begin at the start of the 112th Con-
gress. One practical effect of this limitation was to
prevent Senator Burris, who was appointed to serve as
President Obama’s temporary replacement in the
Senate, from participating in the special election. In this
appeal, Senator Burris asks us to vacate the district
court’s permanent injunction. We conclude that the
lower court acted well within its discretion, and we
affirm its order.
I
We will assume familiarity with our earlier opinion,
which described the background of this case, and so we
address here only the facts necessary to resolve this
successive appeal. On June 16, 2010, we affirmed the
No. 10-2836 3
district court’s decision to deny a preliminary injunction
to two Illinois voters who claimed that the Seventeenth
Amendment required Pat Quinn, the Governor of Illinois,
to issue a writ calling for a special election to select
a permanent replacement for President Obama’s former
seat in the Senate. Judge I, supra.
Our analysis of the Seventeenth Amendment led to
the conclusion that a state must hold an election each
time that a vacancy occurs in its Senate delegation, so
that the people of the state can elect a replacement sena-
tor. To ensure that such an election takes place, the ex-
ecutive officer of the state is required by the Constitu-
tion to issue a writ of election. The timing and me-
chanics of the special election are governed by state
law, as contemplated by the Elections Clause of the
Constitution and the final phrase of the Seventeenth
Amendment’s second paragraph. Finally, the Seven-
teenth Amendment permits the state legislature to em-
power the state executive to fill a Senate vacancy tempo-
rarily by appointment, until a special election takes
place. Judge I,
612 F.3d at 554-55. At the time of the plain-
tiffs’ initial appeal in this case, Governor Quinn had not
issued a writ of election, and the State of Illinois took the
position that Senator Burris was to serve as President
Obama’s replacement in the Senate until January 3, 2011.
They maintained this position despite the fact that then-
Governor Blagojevich’s certificate appointing Senator
Burris made clear that his tenure in the Senate was to
last only “until the vacancy . . . is filled by election as
provided by law.” Accordingly, we concluded that the
4 No. 10-2836
plaintiffs had a strong likelihood of success on the
merits of their constitutional claim.
Ultimately, however, we decided that preliminary
relief was not warranted because the plaintiffs failed to
identify any irreparable harm that they might suffer in
the absence of immediate equitable relief. We noted there
was still ample time during which Governor Quinn
might issue a writ of election, and we felt confident that
the district court would resolve the merits of the plain-
tiffs’ claim in a timely fashion. Because the issue
was not presented in the plaintiffs’ appeal, we declined
to address how the state was to decide what names
should appear on the ballot for the special election. We
did suggest, however, that the state might propose a
solution acceptable to all parties. Judge I,
612 F.3d at 556-57.
Following our decision, the plaintiffs asked the
district court to enter a permanent injunction ordering
Governor Quinn to issue a writ of election that would
call for a special election on November 2, 2010, the date
specified by the Illinois Election Code, 10 ILCS 5/25-8
(West 2010). On June 23, 2010, the district court held
the first of five hearings to consider the plaintiffs’ request.
Lawyers for the plaintiffs, Governor Quinn, and Senator
Burris were present. Governor Quinn opposed the in-
junction, saying that a second election on November 2
would cause voter confusion, that there was too little
time to prepare, and that the Illinois Election Code
failed to outline any method for selecting candidates
to participate. Senator Burris joined the governor’s op-
position. In response, the plaintiffs proposed a number
No. 10-2836 5
of potential solutions to the purported timing and
candidate-selection problems. The district court post-
poned its decision while Governor Quinn filed a peti-
tion in this court for rehearing.
On June 28, 2010, Governor Quinn filed his petition
for rehearing and rehearing en banc. Among other argu-
ments, he again asserted that it would be impossible
for Illinois to prepare for a special election in com-
pliance with the Illinois Election Code in the time re-
maining before November 2. The plaintiffs filed an expe-
dited response, explaining that a November 2 special
election was feasible if the state overrode the normal
primary system for selecting candidates for the ballot
and used a more expeditious method. We denied
rehearing on July 22, at which point we amended our
initial decision to make clear that
[t]he district court has the power to order the state
to take steps to bring its election procedures into
compliance with rights guaranteed by the federal
Constitution, even if the order requires the state to
disregard provisions of state law that otherwise
might ordinarily apply to cause delay or prevent
action entirely. . . . To the extent that Illinois law
makes compliance with a provision of the federal
Constitution difficult or impossible, it is Illinois
law that must yield.
Judge v. Quinn,
2010 WL 2853645, at *1 (7th Cir. July 22,
2010) (unpublished order) (“Judge II”).
Four days after that order, the district court held its
fourth hearing to consider the permanent injunction.
6 No. 10-2836
Abandoning his earlier position, Governor Quinn there
acknowledged that a special election was possible. This
meant that all of the parties then agreed that a primary
was unnecessary. Governor Quinn proposed that the
court disregard the requirements of the Illinois Election
Code and limit the special election ballot to candidates
who had been selected in primaries (or had collected
the requisite number of signatures) and were set to
appear on the November 2 general election ballot for
the new, six-year Senate term. That precise procedure,
the parties agreed, had been used in Illinois to select
candidates for a special election to the U.S. House of Rep-
resentatives following our decision in Jackson v. Ogilvie,
426 F.2d 1333 (7th Cir. 1970). See Vote Set for House
Vacancy, Chicago Tribune, July 28, 1970, at 3. While
the plaintiffs initially put forward a plan under which
the central committees of the state’s political parties
would choose candidates for the special election, in
accordance with the vacancy provisions of the Illinois
Election Code, they made clear that they did not object
to the governor’s plan.
Senator Burris, however, was not satisfied. He op-
posed any plan that would leave him (or other interested
citizens, he said) off the special election ballot. He pro-
posed that the district court enter an injunction
providing that parties who collected a limited number
of signatures would also be entitled to appear on the
ballot for the special election. Governor Quinn urged the
court to reject that idea, arguing that an entirely novel
qualifying procedure would be much too complicated
to implement in the short time that remained. In
No. 10-2836 7
response, the district court asked the parties whether
they would object to its ordering that Senator Burris
should be included on the special election ballot by
fiat. Senator Burris supported that proposal. But the
plaintiffs noted that Senator Burris’s appointment to
the Senate did not give him a special claim to a spot on
the ballot over any other citizen, and Governor Quinn
added that the presence of Senator Burris on the list
of special election candidates might cause confusion
among voters if he was then absent from the list of gen-
eral election candidates on the same ballot. As the
hearing closed, the district judge asked Governor Quinn
and the plaintiffs to return later that week with a draft
injunction order. Senator Burris, still objecting to his
potential exclusion, asked to submit a brief in opposition
to any order, to which the court responded, “I don’t need
any briefs on this. But I will hear you fully when we
have an order . . . . [D]on’t be afraid that you won’t have
an opportunity to be heard.”
On July 29, the district court held its fifth and
final hearing. Governor Quinn and the plaintiffs
arrived having reached agreement on the contours of a
permanent injunction order. After a discussion about
how long the state would have to certify election
results, the court asked Senator Burris’s attorney what
right Senator Burris had to be placed on the special
election ballot as opposed to any other person. The attor-
ney responded, “I don’t know that Senator Burris is
suggesting that there is a right outside of the right
that should be afforded to any person to have ballot
access. He believes that to be a constitutional right.”
8 No. 10-2836
Senator Burris also submitted a brief in opposition to
the permanent injunction, in which he argued that the
district court had denied him the opportunity to be
heard and threatened to violate his right to access the
ballot by issuing an injunction.
The district judge decided it would adopt Governor
Quinn’s proposal, restricting the special election ballot
to those candidates slated to run in the general election.
At the same time, in Springfield, Illinois, Governor
Quinn issued a writ of election. He commanded the
clerks in each county “to cause a SPECIAL ELECTION to
permanently fill [President Obama’s vacancy] for the
remainder of Hon. Obama’s term to be held in the
STATE OF ILLINOIS on TUESDAY, NOVEMBER 2, 2010
in conformity with any applicable federal court orders
and, to the extent feasible, with the Illinois Election
Code . . . .”
On August 4, 2010, the district court entered its pre-
liminary injunction order. In the order, the district court
confirmed that the Illinois Election Code established
November 2 as the date for a special election, and it
found that the writ of election issued by Governor
Quinn complied with the federal Constitution and
Illinois law. In addition, the district court noted that it
had conducted five separate hearings “to consider pro-
cedures for conducting a special election on short no-
tice,” and it recognized that “to the extent that Illinois
law makes compliance with a provision of the federal
Constitution difficult or impossible, it is Illinois law that
must yield to the extent that it otherwise might apply
No. 10-2836 9
to cause delay or prevent action entirely.” See Judge II.
Noting that a primary election was not necessary and
that candidates had to be limited to a manageable
number, the court entered its order adopting Governor
Quinn’s candidate-selection plan. Senator Burris’s
appeal followed.1
II
We review a district court’s entry of a permanent in-
junction for an abuse of discretion. e360 Insight v. The
Spamhaus Project,
500 F.3d 594, 603 (7th Cir. 2007). In an
election law case, “[t]he essential question . . . is whether
the District Court properly exercised its equitable dis-
cretion in reconciling the requirements of the Constitu-
tion with the goals of state political policy.” Connor v.
Finch,
431 U.S. 407, 414 (1977).
Senator Burris’s principal contention in this appeal is
that the district court lacked the power to enter a perma-
nent injunction defining the mechanics of the Novem-
1
On September 3, 2010, Senator Burris filed a Motion for Stay
of District Court Order and a Petition for a Writ of Mandamus
in this court. Both of these represented efforts to prevent the
district court’s injunction from taking effect. This court denied
both the motion and the petition on September 8, 2010, at which
time we expedited this appeal. Senator Burris also filed an
Application (No. 10A272) with Justice Breyer, in his capacity as
Circuit Justice for the Seventh Circuit, seeking a stay of enforce-
ment of the district court’s judgment. On September 20, 2010,
Justice Breyer denied the Application.
10 No. 10-2836
ber 2 special election. This argument is split into
two closely related branches: first, the senator claims
that the lower court’s order concerns a nonjusticiable
political question; and second, he asserts that the injunc-
tion invades the exclusive province of the Illinois state
legislature, in violation of the Elections Clause and the
Seventeenth Amendment. In addition to these argu-
ments, Senator Burris takes the position that the per-
manent injunction interferes with his constitutional
right of access to the ballot.
A
We begin with the political-question argument, for if
this case presents an issue that falls within the scope of
that doctrine, then we lack authority to adjudicate it.
Massachusetts v. EPA,
549 U.S. 497, 516 (2007) (citing
Luther v. Borden,
7 How. 1 (1849)). Contrary to the plain-
tiffs’ suggestion, it makes no difference whether Senator
Burris raised this argument before the district court;
it affects our jurisdiction and cannot be forfeited.
The political-question doctrine “identifies a class of
questions that either are not amenable to judicial resolu-
tion because the relevant considerations are beyond
the courts’ capacity to gather and weigh, . . . or have
been committed by the Constitution to the exclusive,
unreviewable discretion of the executive and/or legisla-
tive—the so-called ‘political’—branches of the federal
government.” Miami Nation of Indians of Indiana, Inc. v.
U.S. Dept. of the Interior,
255 F.3d 342, 347 (7th Cir. 2001).
The Supreme Court’s decision in Baker v. Carr sets out
No. 10-2836 11
the now-familiar factors that, if present, suggest that a
political question exists:
[A] textually demonstrable constitutional commit-
ment of the issue to a coordinate political department;
or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of
deciding without an initial policy determination of
a kind clearly for nonjudicial discretion; or the impos-
sibility of a court’s undertaking independent resolu-
tion without expressing lack of the respect due co-
ordinate branches of government; or an unusual
need for unquestioning adherence to a political deci-
sion already made; or the potentiality of embarrass-
ment from multifarious pronouncements by various
departments on one question.
369 U.S. 186, 217 (1962). Importantly, the Baker Court
added that “[t]he doctrine . . . is one of ‘political questions,’
not one of ‘political cases.’ The courts cannot reject as
‘no law suit’ a bona fide controversy as to whether
some action denominated ‘political’ exceeds constitu-
tional authority.”
Id. Senator Burris suggests that sev-
eral of the considerations Baker v. Carr identified as
tending to reveal a political question are present in his
case. In our view, however, the only ones that require
closer attention are whether there is a lack of judicially
manageable standards for implementing the special
election or if the conduct of that election is entirely com-
mitted to the political branches.
With respect to the first of those issues, both history
and constitutional text show that this case is not one
12 No. 10-2836
where reasonable people might disagree about the avail-
ability of judicially manageable standards. But compare
Vieth v. Jubelirer,
541 U.S. 267 (2004), and Davis v. Bandemer,
478 U.S. 109 (1986). The Seventeenth Amendment sup-
plies a concrete rule requiring an election to fill
each Senate vacancy. The district court turned to state
law, past practice in Illinois, and recent primary election
results to establish the timing of the required
special election and a fair slate of candidates to partici-
pate. Nothing that the court did in order to bring
Illinois’s election procedures into line with the Seven-
teenth Amendment was beyond its capacity.
Similarly, this case does not involve an issue com-
mitted to the exclusive discretion of one of the political
branches. Senator Burris takes the view that, because
the Constitution commits to the Illinois legislature the
job of defining the mechanics of a vacancy election,
the federal district court has no institutional role to play.
But a long line of decisions from the Supreme Court
demonstrate that he is wrong. The Court has said that
“[w]hen challenges to state action respecting matters of
the administration of the affairs of the State and the
officers through whom they are conducted have rested
on claims of constitutional deprivation which are
amenable to judicial correction,” federal courts may act
to address the merits of those claims. Baker,
369 U.S. at
229 (internal quotation marks and footnote omitted).
Indeed, the Court repeatedly has held that a federal court
may correct constitutional wrongs in areas generally
within the purview of state lawmakers, and it has
applied this principle to the area of elections. In addition
No. 10-2836 13
to Baker,
supra, see William v. Rhodes,
393 U.S. 23, 28
(1968) (“[The state’s] claim that the political-question
doctrine precludes judicial consideration of these cases
requires very little discussion. That claim has been
rejected in cases of this kind numerous times.”); Bond v.
Floyd,
385 U.S. 116, 130 (1966) (“The State does not
claim that it should be completely free of judicial review
whenever it disqualifies an elected Representative; it
admits that, if a State Legislature excluded a legislator
on racial or other clearly unconstitutional grounds, the
federal judiciary would be justified in testing the exclu-
sion by federal constitutional standards.”); Reynolds v.
Sims,
377 U.S. 533, 585 (1964) (“[O]nce a State’s legisla-
tive apportionment scheme has been found to be uncon-
stitutional, it would be the unusual case in which a
court would be justified in not taking appropriate action
to insure that no further elections are conducted under
the invalid plan.”); Wesberry v. Sanders,
376 U.S. 1, 6-7
(1964) (noting that “nothing in the language of [the Elec-
tions Clause] gives support to a construction that would
immunize state congressional apportionment laws
which debase a citizen’s right to vote from the power of
courts to protect the constitutional rights of individuals
from legislative destruction”); Gomillion v. Lightfoot,
364
U.S. 339, 344-45 (1960) (striking down municipal bound-
aries that impaired voting rights and concluding
that “[l]egislative control of municipalities, no less than
other state power, lies within the scope of relevant li-
mitations imposed by the United States Constitution”).
As we noted in Judge II, where state action (or, as here,
inaction) infringes rights guaranteed by the federal Con-
14 No. 10-2836
stitution, the federal courts have the power to hear
cases and fashion remedies to redress the constitutional
wrong.
B
Senator Burris next asserts that the district court
usurped the constitutional role of the Illinois General
Assembly when it decided how candidates should be
selected for the special election and set a deadline for
certifying election results. The phrase “as the legislature
may direct,” which concludes the second paragraph of
the Seventeenth Amendment, U.S. C ONST. amend. XVII,
para. 2, affirms that the Amendment was not intended
to disrupt the allocation of power established by the
Elections Clause of the Constitution to dictate the terms
of elections. See U.S. C ONST. art. I, § 4, cl. 1. Judge I,
612
F.3d at 552-54; see also Newberry v. United States,
256 U.S. 232, 252 (1921). Accordingly, “State law con-
trols the timing and other procedural aspects of vacancy
elections. The Elections Clause obliges the state to
make these rules, and the final phrase of the Seventeenth
Amendment’s second paragraph reaffirms this role.”
Judge I,
612 F.3d at 554. Notwithstanding these au-
thorities, Senator Burris maintains that the district
court’s order offends the Constitution.
As an initial matter, Senator Burris failed to raise this
argument before the district court. And this argument,
unlike the justiciability claim we discussed above, can
be forfeited. A party who fails to present an argument
in the trial court forfeits the position on appeal, unless
No. 10-2836 15
we choose to entertain it “in the interests of justice.”
Humphries v. CBOCS West, Inc.,
474 F.3d 387, 391 (7th
Cir. 2007). In this case, we see no reason to take this
unusual step. In the district court, Senator Burris was
perfectly content with the district court’s power to
fashion an order dictating what candidates would par-
ticipate in the November 2 special election, so long as
he was included among those candidates. He asked
the district court to implement a signature-gathering
mechanism that would allow him to earn a place on the
ballot; and, when that idea failed, he encouraged the
court to add him to the ballot by virtue of the fact that
he was the temporary appointee. Not once in the five
hearings before the injunction issued did Senator Burris
argue that the district court lacked the authority to estab-
lish a slate of candidates, and his written objections to
the injunction, submitted on July 29, do not mention
this point either. This court will not overturn an injunc-
tion based on an argument not presented to the district
court, Russian Media Group, LLC v. Cable America, Inc.,
598 F.3d 302, 308-09 (7th Cir. 2010), and there is no
good reason to make an exception in this case, where
Senator Burris took a position in the lower court that is
the opposite of the one he advances here.
Even if Senator Burris had not forfeited the argument,
he would be no better off. Our previous discussion of
the political-question doctrine amply demonstrates the
power of the district court to fashion an equitable
remedy in this case. In the face of a constitutional viola-
tion, it makes no difference that both the Elections
Clause and the final phrase of the Seventeenth Amend-
16 No. 10-2836
ment’s second paragraph assign primary responsibility
to the states for controlling the timing and other pro-
cedural aspects of vacancy elections. The same can be
said of countless other areas in which, once a constitu-
tional violation has been proven, federal courts have
the power to issue remedial orders tailored to the scope
of the constitutional violation. See, e.g., American Trucking
Ass’n, Inc. v. Smith,
496 U.S. 167 (1990) (state taxation);
Hutto v. Finney,
437 U.S. 678 (1978) (prison conditions);
Milliken v. Bradley,
418 U.S. 717, 744-45 (1974) (school
desegregation); Swann v. Charlotte-Mecklenburg Bd. of Ed.,
402 U.S. 1, 15 (1971) (school desegregation); Brown v.
Board of Education,
349 U.S. 294, 299-300 (1955) (school
desegregation). As Governor Quinn recently pointed out
in his opposition to a stay of the district court’s order in
the Supreme Court, “Once the appellate court . . . deter-
mined that the Seventeenth Amendment required . . . an
election, it was impossible to hold the election in the
manner set forth by the Illinois legislature. In that circum-
stance, the district court was required to remedy the
constitutional violation perceived by the Seventh Circuit,
something that was unquestionably within the court’s
power.” Memorandum of Governor Pat Quinn in Opposi-
tion at 16, Burris v. Judge, et al., No. 10A272 (U.S. Sept. 17,
2010) (citing Smith v. Robinson,
468 U.S. 992, 1012 n.15
(1984)).
C
With respect to Senator Burris’s final argument, we
can be brief. Senator Burris contends that the district
court’s order, which was designed to remedy a violation
No. 10-2836 17
of the Seventeenth Amendment, unconstitutionally
blocks not only his access to the ballot but also that of
any others who might be interested in running in the
special election. In support of this argument, Senator
Burris lists a number of cases where the Supreme
Court has struck down ballot access restrictions as vio-
lating the Equal Protection Clause, the First Amendment
guarantee of freedom of association, and the Qualifica-
tions Clause of Article I, Section 3. See Williams v. Rhodes,
393 U.S. 23 (1968), Anderson v. Celebrezee,
460 U.S. 780
(1983), and U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779
(1995), respectively. But apart from alleging generally
that his exclusion from the November 2 special elec-
tion violates the Constitution, Senator Burris gives no
indication about which provisions of the Constitution
he is relying on or how his exclusion has caused the
violation. We have repeatedly reminded litigants, espe-
cially those represented by counsel, that compliance
with Rule of Appellate Procedure 28 requires more than
“a generalized assertion of error.” Anderson v. Hardman,
241 F.3d 544, 545 (7th Cir. 2001); see also Haxhiu v.
Mukasey,
519 F.3d 685, 691 (7th Cir. 2008). Senator Burris’s
claim that he has been unconstitutionally denied access
to the ballot leaves us with very little to evaluate.
For the sake of completeness, however, we observe
that the Supreme Court has explained that the effect of
ballot access restrictions on candidates always has a
correlative effect on the field of candidates among
whom voters might choose. Anderson,
460 U.S. at 786.
When analyzing candidate restrictions, we are “ ‘to ex-
amine in a realistic light the extent and nature of their
18 No. 10-2836
impact on voters.’ ”
Id. (quoting Bullock v. Carter,
405
U.S. 133, 143 (1972)). For example, restrictions pose a
problem if they keep political parties off the ballot, Wil-
liams,
393 U.S. at 31, interfere with political expression,
Illinois Elections Bd. v. Socialist Workers Party,
440 U.S.
173, 186 (1979), or force indigent candidates to pay fees
they cannot afford, Lubin v. Panish,
415 U.S. 709, 718 (1974).
At the same time, however, candidacy itself is not a
fundamental right, and the Court has held “that the
existence of barriers to a candidate’s access to the
ballot ‘does not of itself compel close scrutiny.’ ” Clements
v. Fashing,
457 U.S. 957, 963 (1982) (quoting Bullock, 405
U.S. at 143). “[N]ot all restrictions imposed . . . on candi-
dates’ eligibility for the ballot impose constitutionally-
suspect burdens on voters’ rights to associate or to
choose among candidates. . . . ‘[A]s a practical matter,
there must be a substantial regulation of elections if they
are to be fair and honest and if some sort of order, rather
than chaos, is to accompany the democratic process.’ ”
Anderson v. Celebrezze,
460 U.S. 780, 788 (1983) (quoting
Storer v. Brown,
415 U.S. 724, 730 (1974)). In this case, two
considerations lead us to the conclusion that the
district court’s order does not run afoul of the Court’s
guidance on ballot-access restrictions. First, nothing in
the permanent injunction excludes a particular class
or group of candidates in a manner that suggests that
an identifiable group of voters will be left out of the
special election. Second, and more importantly, the
district court’s order is narrowly tailored to address
only one occasion; it will have no effect on future
elections in Illinois.
No. 10-2836 19
As we have already noted, the district court drew on
a procedure used in this circuit after Jackson v. Ogilvie,
426 F.2d 1333 (7th Cir. 1970), to define the mechanics of
the special election required by the Constitution. Senator
Burris attempts to derive a constitutional violation from
the district court’s effort to balance a constitutional re-
quirement, state election law, and the need to supply
a remedy in an expeditious fashion. But far from being
an additional constitutional error, the district court’s
effort did nothing more or less than vindicate constitu-
tional rights in light of the real-word consequences of
the necessary relief. See Weinberger v. Romero-Barcelo,
456 U.S. 305, 312 (1982). The district court had discretion
to limit the special election participants to names
already on the general election ballot in order to avoid
other problems, both constitutional and practical, that
might have arisen if the special election were left wide
open. Cf. Nader v. Keith,
385 F.3d 729 (7th Cir. 2004) (ap-
proving a district court’s refusal to enter an injunction
that would have interfered with an already-scheduled
election). Finally, the district court’s remedy, which
relies on candidates selected pursuant to the Illinois
Election Code, was designed to be, and probably is,
the most democratic and constitutionally sound ap-
proach the district court could have devised.
III
Senator Burris has asked us to vacate the district
court’s permanent injunction on the ground that it is
the job of the Illinois legislature, not the federal courts, to
20 No. 10-2836
establish election procedures that ensure that the seat
once held by President Obama in the U.S. Senate is filled
in a manner that complies with the Seventeenth Amend-
ment. Putting to one side the fact that the plaintiffs
brought suit to compel Governor Quinn and others to
act when they refused to do so, Senator Burris now con-
cedes that the consequence of granting him the relief
he seeks is that no special election will take place at all
in light of the complexity of the administrative steps
needed to prepare for the election. He says this is
normal, pointing to our observation in Judge I that
nearly 15% of the almost 200 vacancies in the last
century have been filed without a vote of the people.
But this statistic provides no support for Senator
Burris’s position. To the contrary, it demonstrates that
too often the requirements of the Seventeenth Amend-
ment have been ignored. Well-established principles of
equity require courts to consider, among other factors,
the balance of hardship between plaintiff and defendant
and the effect that the injunction would have on
the public before granting equitable relief. eBay Inc. v.
MercExchange, L.L.C.,
547 U.S. 388, 391 (2006). In this
case, the balance of hardships favors the plaintiffs, who—
along with the rest of the citizens of Illinois—will see
their Seventeenth Amendment rights vindicated in a
special election. For Senator Burris, it means only that
he will finish his temporary appointment in the Senate
two months earlier than he may have expected. In an
exceedingly short time, the district court considered the
arguments of all sides, forged agreement between the
parties, and reached a solution to bring the Illinois
No. 10-2836 21
election machinery into line with the federal Constitu-
tion. The district court is to be congratulated for
the fine job it did, under extreme time pressure, in re-
solving this case.
The district court’s order is A FFIRMED.
10-4-10
