Gerald Judge v. Roland Burris

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2836
GERALD A. JUDGE and DAVID
KINDLER ,
Plaintiffs-Appellees,
v.
PAT QUINN , Governor of
the State of Illinois,
Defendant,
and
ROLAND W. BURRIS , 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.
2 No. 10-2836
SUBMITTED SEPTEMBER 22, 2010* — D ECIDED SEPTEMBER 24, 2010
O PINION **
Before ROVNER , WOOD , and TINDER , Circuit Judges.
WOOD , 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 November 2 is fast
approaching and in the interest of a manageable 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 November 2 ballot in the general election to fill
the six-year Senate term that will begin at the start of the 112th
Congress. 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
*
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 is being issued in typescript; printed version
to follow .
No. 10-2836 3
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 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 senator. To ensure that such
an election takes place, the executive officer of the state is
required by the Constitution to issue a writ of election. The
timing and mechanics 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 Seventeenth
Amendment permits the state legislature to empower the state
executive to fill a Senate vacancy temporarily by appointment,
until a special election takes place. Judge I, 612 F.3d at 554-55.
At the time of the plaintiffs’ 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 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 plaintiffs’ claim in a timely fashion. Because the
4 No. 10-2836
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
injunction, 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 opposition. In response, the plaintiffs proposed a
number of potential solutions to the purported timing and
candidate-selection problems. The district court postponed its
decision while Governor Quinn filed a petition in this court for
rehearing.
On June 28, 2010, Governor Quinn filed his petition for
rehearing and rehearing en banc. Among other arguments, he
again asserted that it would be impossible for Illinois to
prepare for a special election in compliance with the Illinois
Election Code in the time remaining before November 2. The
plaintiffs filed an expedited 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
No. 10-2836 5
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. 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 Representatives 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 opposed any
plan that would leave him (or other interested citizens, he said)
off the special election ballot. He proposed 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 response, the
district court asked the parties whether they would object to its
6 No. 10-2836
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 general 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
attorney 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.” 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
No. 10-2836 7
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 preliminary
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
procedures for conducting a special election on short notice,”
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 to cause delay or prevent
action entirely.” 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 injunction
for an abuse of discretion. e360 Insight v. The Spamhaus Project,
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 enforcement of the district court’s
judgment. On September 20, 2010, Justice Breyer denied the
Application.
8 No. 10-2836
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 discretion in reconciling the
requirements of the Constitution 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 permanent injunction
defining the mechanics of the November 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
injunction invades the exclusive province of the Illinois state
legislature, in violation of the Elections Clause and the
Seventeenth Amendment. In addition to these arguments,
Senator Burris takes the position that the permanent 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 plaintiffs’ 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 resolution 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 legislative – 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 the now-
familiar factors that, if present, suggest that a political question
exists:
No. 10-2836 9
[A] textually demonstrable constitutional commitment 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 impossibility of a court’s undertaking
independent resolution without expressing lack of the
respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political
decision already made; or the potentiality of
embarrassment 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 constitutional authority.” Id. Senator Burris
suggests that several 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 committed to the
political branches.
With respect to the first of those issues, both history and
constitutional text show that this case is not one where
reasonable people might disagree about the availability 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 supplies 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 participate.
Nothing that the court did in order to bring Illinois’s election
procedures into line with the Seventeenth Amendment was
beyond its capacity.
10 No. 10-2836
Similarly, this case does not involve an issue committed 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 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 exclusion by federal
constitutional standards.”) ; Reynolds v. Sims, 377 U.S. 533, 585
(1964) (“[O]nce a State’s legislative apportionment scheme has
been found to be unconstitutional, 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 Elections Clause]
gives support to a construction that would immunize state
congressional apportionment laws which debase a citizens
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, 344-345 (1960)
No. 10-2836 11
(striking down municipal boundaries that impaired voting
rights and concluding that “[l]egislative control of
municipalities, no less than other state power, lies within the
scope of relevant limitations 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
Constitution, 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. CONST .
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. CONST . 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 controls 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
authorities, 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 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 participate in the
12 No. 10-2836
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 establish 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 injunction 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 violation, it makes no difference that both the
Elections Clause and the final phrase of the Seventeenth
Amendment’s second paragraph assign primary responsibility
to the states for controlling the timing and other procedural
aspects of vacancy elections. The same can be said of countless
other areas in which, once a constitutional 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); 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). 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 . . . determined 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 circumstance, 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
Opposition at 16, Burris v. Judge, et al., No. 10A272 (U.S. Sep. 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 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 violating the
Equal Protection Clause, the First Amendment guarantee of
freedom of association, and the Qualifications 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 election 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, especially 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 examine in a realistic light the extent
and nature of their impact on voters.’” Id. (quoting Bullock v.
14 No. 10-2836
Carter, 405 U.S. 133, 143 (1972)). For example, restrictions pose
a problem if they keep political parties off the ballot, Williams,
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 candidates’ 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.
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 requirement, 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 constitutional rights in light of the real-word
consequences of the necessary relief. See Weinberger v. Romero-
No. 10-2836 15
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) (approving 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 approach 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 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 Amendment. 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
concedes 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 Amendment 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
16 No. 10-2836
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
election machinery into line with the federal Constitution. The
district court is to be congratulated for the fine job it did, under
extreme time pressure, in resolving this case.
The district court’s order is AFFIRM ED .