Judge v. Quinn ( 2010 )

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 22, 2010
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09-2219
GERALD A. JUDGE and DAVID Appeal from the United States District
KINDLER, Court for the Northern District
Plaintiffs-Appellants, of Illinois
v. No. 09 C 1231
PATRICK J. QUINN, Governor of the John F. Grady, Judge.
State of Illinois, and ROLAND W.
BURRIS, U.S. Senator,
Defendants-Appellees.
ORDER
On June 28, 2010, Defendant-Appellee Patrick J. Quinn filed a “Motion to Amend
Opinion or, in the Alternative, Petition for Rehearing En Banc, of Defendant-Appellee Patrick
J. Quinn, Governor of the State of Illinois.” As ordered by the court, Plaintiffs-Appellants filed
their response to that motion on July 7, 2010. The court construes the motion as a petition for
rehearing or rehearing en banc.
On consideration of the petition, so understood, all of the judges on the original panel
have voted to deny rehearing, and no judge in active service has requested a vote on the
No. 09-2219 Page 2
petition for rehearing en banc. It is therefore ORDERED that the petition for rehearing en banc
is DENIED.
It is further ORDERED that the opinion of the court is revised as follows. On page 38, line
19, the following language is deleted:
However Illinois conducts its election for the vacancy, the replacement senator
presumably would present his or her credentials to the Senate and take office
immediately, while the senator elected to begin service with the 112th Congress
would not take office until January 3, 2011.
In its place, the following two new paragraphs are added:
The 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. It is elementary that the Seventeenth Amendment’s requirement that
a state governor issue a writ of election to guarantee that a vacancy in the state’s
senate delegation is filled by an election is an aspect of the supreme law of the
land. U.S. C ONST. art VI, cl. 2. 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. See Rice v. Cayetano, 528 U.S. 495 (2000) (holding that state-
law rules governing elections of trustees to the Office of Hawaiian Affairs
violated the Fifteenth Amendment); Dunn v. Blumstein, 405 U.S. 330 (1972)
(striking down state-law durational residency requirements as unconstitutional
under the Fourteenth Amendment); Harper v. Virginia Bd. of Elections, 383 U.S.
663 (1966) (holding that state-law poll taxes violated the Fourteenth
Amendment).
However Illinois conducts its election for the vacancy, the state should
endeavor to certify the results of that election as soon as possible, so that the
replacement senator may present his or her credentials to the Senate and take
office promptly. The senator elected to begin service with the 112th Congress
will take office as the Constitution provides on January 3, 2011. U.S. C ONST.
amend. XX, sec. 1.
In all other respects, the petition for rehearing is DENIED.