Democratic leaders in the U.S. Senate and Illinois have not been coy about their intentions to reject anyone the embattled Governor Rod Blagojevich named to fill the Senate seat left vacant by President-elect Barack Obama. But legal scholars say their bluster may be just that, and they will likely be overruled by the legal system and forced to seat Roland Burris.
Illinois Secretary of State Jesse White has said that he will not certify the Burris appointment. However, state charter says that it is the “duty” of the Secretary of State to “countersign and affix the seal of state to all commissions required by law to be issued by the Governor” and make a register of all such appointments.
Ken Gross, former associate general counsel of the Federal Election Commission, told the Huffington Post that the charter suggests that certification "is more or less a perfunctory act.” Refusing to do so will be subject to litigation.
If White refuses to certify the appointment, it will likely be overturned in Illinois state court. The focus then shifts to the U.S. Senate where Senate Majority Leader Harry Reid could refuse to seat Burris. However, since Burris meets all the constitutional qualifications to be appointed as Senator – he is older than 30 years of age, has been a U.S. citizen for more than 9 years, is an Illinois resident, and was appointed by the executive authority of the state to fill a vacancy under Illinois law – the Supreme Court could overrule on the grounds that refusal to seat Burris is unconstitutional.
There is even case precedent. In January 1967, Adam Clayton Powell of New York was re-elected to his House seat despite allegations that he had misused official travel funds and made improper payments to his wife. The House decided that Powell was unqualified, based on a provision of the Constitution that says, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” and refused to seat him.
Powell sued and the Supreme Court ruled that the House was wrong and that Powell must be seated since he meets the minimal requirements for office set out in the Constitution.
Congress has refused to seat incoming members based on alleged election irregularities, but given that Blagojevich is still legally the governor of Illinois and has the sole power to fill vacancies in the U.S. Senate, the Senate leadership has little legal standing upon which to halt Burris’s appointment.
The Senate does have the option of expelling Burris once he takes the oath of office, but legal experts think that would be difficult since Burris appears to have engaged in no misconduct. Even Senators who have been convicted of criminal activity, such as Idaho Senator Larry Craig and former Alaska Senator Ted Stevens, have many legal loopholes to slip through and typically stay in office unless they choose to resign.
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