IL Special Election Joint Resolution?
Can a legislative joint resolution trump a state statute? The answer to this question is almost always an immediate “No.” But we may have a special case in Illinois.
As thinkers in Illinois debate ways to fill Obama’s seat, those calling for a special election have a big problem. A current Illinois statute gives the Governor power to fill Senate vacancies. 10 ILCS 5/25‑8. Passing a new state law to reverse the old one requires Governor Blagojevich to sign away his power. And he doesn’t have to veto it, he can merely put it in a drawer and run out the clock on the Illinois General Assembly to kill the bill.
Amendment 17 of the US Constitution vests the determination of whether or not to empower the Governor with the appointment power solely with the state legislature. In 1943, the legislature gave the Governor power to make the appointment by passing the statute referenced above, 10 ILCS 5/25‑8. I wonder if a joint resolution calling for a special election, revoking the Governors power in this specific case, would hold up.
While in almost all cases a joint legislative resolution would be trumped by a state law, this may be a special case because the 17th Amendment doesn’t give the governor a role in the determining whether or not the Governor gets to make the appointment, and to reverse the law the Governor plays a vital role: He has to sign the damn thing.
Because the authority at issue comes from the US Constitution, not state law, this may be a special case where a joint resolution could reverse a statute.
Finally, a few disclaimers: (1) I think there is a high probability this legal theory doesn’t stand up, greater than 50% chance this is nonsense; (2) I don’t think there is a chance this will happen because it would be foolish for Democrats to risk a special election. Good governance, sure, but smart politics, no way. And Madigan and Cullerton are both smart politicians; and (3) You may have seen this theory before, as I’ve posted it in the comments near the end of another thread, but I think its a novel enough thought/ situation that I wanted to raise it for discussion.
