When a member of the US Senate vacates his office, the Constitution (17th Amendment) directs that the state which has lost its representative “shall issue writs of election” to fill the vacancy. That means hold an election, and presumably certify the election results to the Senate. It goes on to allow the legislature of said state to empower the executive (i.e., the governor) to make a temporary appointment. In other words, it’s up to the state who goes to the senate, and it’s up to the legislature of the state to set the rules.

In Illinois, the rules are that the governor “shall make temporary appointment to fill such vacancy until the next election of representatives in Congress.” In other words, until the next even-year elections, in this case 2010.

The recommended forms of the Senate have a line for the governor to sign, and a line for the Secretary of State to countersign, to certify the election. Makes sense, in most states the SecState is in charge of elections. However, Illinois law does not give the SecState any power, authority, or cause to certify the governor’s appointments.

The pathetic governor of Illinois, Rod R. Blagojevich, appointed Roland Burris to fill the remaining period of Barack Obama’s Senate term on 31 December 2008. Illinois SecState Jesse White refused to certify the appointment, although he did enter the appointment in state records. On 2 January 2009, Burris filed a mandamus petition with the Illinois Supreme Court to force Mr White to sign, and in a clearly-reasoned ruling the court denied the petition one week later.

Meanwhile, the letter of appointment was presented to the secretary of the Senate on the 5th, but the Senate refused to seat Mr Burris when the session opened on the 6th, claiming that the Senate rules and tradition require the certification by the Secretary of State. The Illinois Supreme Court carefully reviewed the Senate’s rules and determined that there was no such requirement. In other words, Harry Reid is full of the same rich nutrient material we suggested be taken to Akron yesterday.

The Constitution does charge the Senate with qualifying its members, but it also establishes those qualifications. To wit: 1) a citizen of the United States, 2) thirty years of age, and 3) duly elected or appointed by the state represented. That’s it. Burris is fully qualified on all three points. We would think that the first two are obvious, and the ruling of the Illinois court, while denying the writ of mandamus, clearly ruled that the appointment was legal under Illinois law, the only law that matters to meet the third test.

If I Were King, Harry Reid would have some groveling to do, right after Mr Burris was sworn in.