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February 26, 2009

Removing Burris

Here’s an interesting twist to the saga of embattled Sen. Roland Burris: Illinois Attorney General Lisa Madigan is now arguing that holding a special election for Burris' Senate seat would effectively nullify his appointment:

Attorney General Lisa Madigan issued a surprise opinion late Wednesday that could pave the way for state lawmakers to cut Sen. Roland Burris' term short by setting a special election.

"It is my opinion that the legislature may pass a law allowing the people of Illinois to elect a U.S. senator to fill the seat vacated by President Barack Obama. Such a law would be consistent with the U.S. Constitution," Madigan said.

In response to inquiries from state lawmakers, the attorney general's 11-page opinion said the U.S. Constitution's 17th Amendment gives a "preference" to the General Assembly to set a special election for the position even though Burris has been formally seated and sworn in by the U.S. Senate.

"A temporary appointee to the U.S. Senate has no right that prevents the General Assembly from passing legislation to enable the people to elect their U.S. senator," she wrote in the opinion.

Constitutional experts are skeptical of Madigan’s case, with one telling the Chicago Tribune that “you can’t change a law retroactively.” And Madigan’s last creative legal opinion -- an attempt to declare Rod Blagojevich mentally unfit for office—didn’t work out so well.