Burris’s Options if a Special Election is Called

          

            Senator Burris, through his attorney, has indicated that he believes it would be illegal for the Illinois legislature to change the date of the special election to fill the remainder of the Senate term.  It is also apparent that he is willing to mount a vigorous legal challenge. 

             If Illinois enacts a law requiring a special election, Burris may seek relief in either state or federal court (or both) seeking to prevent the election from being held.  It is possible, perhaps likely, that he will be unable to obtain a ruling on the merits, however.  I imagine that the courts would be reluctant to enjoin an election, and they may be inclined to dismiss Burris’s challenge on standing, ripeness or other threshold grounds.  After all, it is always possible that Burris could win the special election or that the Senate would refuse to seat the winner. 

            Assuming that the special election was held (and someone other than Burris prevailed), Burris might also seek to enjoin the issuance of a certificate of election.  At that stage, however, it seems likely that the courts would defer to the Senate, which has the constitutional power to judge the election of its members.   

            Burris’s next option would be to ask the Senate to refuse to seat the winner of the special election.  (This request in itself might create a difficult question for the Senate, because Burris’s right to challenge the credentials of a Senator-elect would be dependent on his being a member of the Senate, but it could be argued that once the certificate of election issued, Burris ceased to be a member of the Senate.)  The Senate would either refer the matter to the Committee on Rules and Administration, or proceed to have the full Senate vote on whether to seat the winner.  Either way, the Senate would have to confront the difficult constitutional issue posed by Illinois’s changing of the special election date. 

            Assuming that the Senate decides to seat the special election winner and unseat Burris (which, politically, seems like a virtual certainty), Burris could proceed to challenge his exclusion from the Senate in federal court.  It is possible that this issue would be deemed a political question unreviewable by a court.  But it is also possible that a court would view the political question doctrine as inapplicable to the issue at hand, since the question presented is a pure legal issue under the Seventeenth Amendment which involves no exercise of discretion or judgment by the Senate. 

            All of this is a long way of saying that the attempt to remove Burris by means of a special election is likely to result in a long legal fight, probably on multiple fronts, and present a major distraction to the Senate.   A special election is by no means an easy way out for the Senate.  To the contrary, an ethics investigation, culminating in a decision on Burris’s expulsion, is the cleanest and most constitutionally appropriate way of resolving this vexing problem.