Gerald Judge v. Roland Burris

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2836

G ERALD A. JUDGE and D AVID K INDLER,

Plaintiffs-Appellees,

v.

P AT Q UINN, Governor of the State of Illinois,

Defendant,

and

R OLAND W. B URRIS, U.S. Senator,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 C 1231—John F. Grady, Judge.

S U BM ITTED S EP TEM BER 22, 2010 Œ— D EC ID ED S EP TEM BER 24, 2010 ŒŒ

O PINION P UBLISHED O CTOBER 4, 2010

Œ

After an examination of the briefs and the record, we

have concluded that oral argument is unnecessary. Thus the

appeal is submitted on the briefs and the record. F ED . R. A PP .

P. 34(a)(2).

ŒŒ

This opinion was issued in typescript on September 24,

2010.

2 No. 10-2836

Before R OVNER, W OOD , and T INDER, Circuit Judges.

W OOD , Circuit Judge. In this appeal, Senator Roland

Burris challenges a permanent injunction entered by

the district court after our decision in Judge v. Quinn, 612

F.3d 537 (7th Cir. 2010) (“Judge I”). That injunction

states that the State of Illinois will hold a special

election on November 2, 2010. In that election, the

people of Illinois will select a permanent replacement to

fill President Barack Obama’s seat in the U.S. Senate for

the remainder of the 111th Congress. Because Novem-

ber 2 is fast approaching and in the interest of a manage-

able election, the district court limited the candidates

who will appear on the ballot for the special election

to those people who are slated to appear on the Novem-

ber 2 ballot in the general election to fill the six-year

Senate term that will begin at the start of the 112th Con-

gress. One practical effect of this limitation was to

prevent Senator Burris, who was appointed to serve as

President Obama’s temporary replacement in the

Senate, from participating in the special election. In this

appeal, Senator Burris asks us to vacate the district

court’s permanent injunction. We conclude that the

lower court acted well within its discretion, and we

affirm its order.

I

We will assume familiarity with our earlier opinion,

which described the background of this case, and so we

address here only the facts necessary to resolve this

successive appeal. On June 16, 2010, we affirmed the

No. 10-2836 3

district court’s decision to deny a preliminary injunction

to two Illinois voters who claimed that the Seventeenth

Amendment required Pat Quinn, the Governor of Illinois,

to issue a writ calling for a special election to select

a permanent replacement for President Obama’s former

seat in the Senate. Judge I, supra.

Our analysis of the Seventeenth Amendment led to

the conclusion that a state must hold an election each

time that a vacancy occurs in its Senate delegation, so

that the people of the state can elect a replacement sena-

tor. To ensure that such an election takes place, the ex-

ecutive officer of the state is required by the Constitu-

tion to issue a writ of election. The timing and me-

chanics of the special election are governed by state

law, as contemplated by the Elections Clause of the

Constitution and the final phrase of the Seventeenth

Amendment’s second paragraph. Finally, the Seven-

teenth Amendment permits the state legislature to em-

power the state executive to fill a Senate vacancy tempo-

rarily by appointment, until a special election takes

place. Judge I, 612 F.3d at 554-55. At the time of the plain-

tiffs’ initial appeal in this case, Governor Quinn had not

issued a writ of election, and the State of Illinois took the

position that Senator Burris was to serve as President

Obama’s replacement in the Senate until January 3, 2011.

They maintained this position despite the fact that then-

Governor Blagojevich’s certificate appointing Senator

Burris made clear that his tenure in the Senate was to

last only “until the vacancy . . . is filled by election as

provided by law.” Accordingly, we concluded that the

4 No. 10-2836

plaintiffs had a strong likelihood of success on the

merits of their constitutional claim.

Ultimately, however, we decided that preliminary

relief was not warranted because the plaintiffs failed to

identify any irreparable harm that they might suffer in

the absence of immediate equitable relief. We noted there

was still ample time during which Governor Quinn

might issue a writ of election, and we felt confident that

the district court would resolve the merits of the plain-

tiffs’ claim in a timely fashion. Because the issue

was not presented in the plaintiffs’ appeal, we declined

to address how the state was to decide what names

should appear on the ballot for the special election. We

did suggest, however, that the state might propose a

solution acceptable to all parties. Judge I, 612 F.3d at 556-57.

Following our decision, the plaintiffs asked the

district court to enter a permanent injunction ordering

Governor Quinn to issue a writ of election that would

call for a special election on November 2, 2010, the date

specified by the Illinois Election Code, 10 ILCS 5/25-8

(West 2010). On June 23, 2010, the district court held

the first of five hearings to consider the plaintiffs’ request.

Lawyers for the plaintiffs, Governor Quinn, and Senator

Burris were present. Governor Quinn opposed the in-

junction, saying that a second election on November 2

would cause voter confusion, that there was too little

time to prepare, and that the Illinois Election Code

failed to outline any method for selecting candidates

to participate. Senator Burris joined the governor’s op-

position. In response, the plaintiffs proposed a number

No. 10-2836 5

of potential solutions to the purported timing and

candidate-selection problems. The district court post-

poned its decision while Governor Quinn filed a peti-

tion in this court for rehearing.

On June 28, 2010, Governor Quinn filed his petition

for rehearing and rehearing en banc. Among other argu-

ments, he again asserted that it would be impossible

for Illinois to prepare for a special election in com-

pliance with the Illinois Election Code in the time re-

maining before November 2. The plaintiffs filed an expe-

dited response, explaining that a November 2 special

election was feasible if the state overrode the normal

primary system for selecting candidates for the ballot

and used a more expeditious method. We denied

rehearing on July 22, at which point we amended our

initial decision to make clear that

[t]he district court has the power to order the state

to take steps to bring its election procedures into

compliance with rights guaranteed by the federal

Constitution, even if the order requires the state to

disregard provisions of state law that otherwise

might ordinarily apply to cause delay or prevent

action entirely. . . . To the extent that Illinois law

makes compliance with a provision of the federal

Constitution difficult or impossible, it is Illinois

law that must yield.

Judge v. Quinn, 2010 WL 2853645, at *1 (7th Cir. July 22,

2010) (unpublished order) (“Judge II”).

Four days after that order, the district court held its

fourth hearing to consider the permanent injunction.

6 No. 10-2836

Abandoning his earlier position, Governor Quinn there

acknowledged that a special election was possible. This

meant that all of the parties then agreed that a primary

was unnecessary. Governor Quinn proposed that the

court disregard the requirements of the Illinois Election

Code and limit the special election ballot to candidates

who had been selected in primaries (or had collected

the requisite number of signatures) and were set to

appear on the November 2 general election ballot for

the new, six-year Senate term. That precise procedure,

the parties agreed, had been used in Illinois to select

candidates for a special election to the U.S. House of Rep-

resentatives following our decision in Jackson v. Ogilvie,

426 F.2d 1333 (7th Cir. 1970). See Vote Set for House

Vacancy, Chicago Tribune, July 28, 1970, at 3. While

the plaintiffs initially put forward a plan under which

the central committees of the state’s political parties

would choose candidates for the special election, in

accordance with the vacancy provisions of the Illinois

Election Code, they made clear that they did not object

to the governor’s plan.

Senator Burris, however, was not satisfied. He op-

posed any plan that would leave him (or other interested

citizens, he said) off the special election ballot. He pro-

posed that the district court enter an injunction

providing that parties who collected a limited number

of signatures would also be entitled to appear on the

ballot for the special election. Governor Quinn urged the

court to reject that idea, arguing that an entirely novel

qualifying procedure would be much too complicated

to implement in the short time that remained. In

No. 10-2836 7

response, the district court asked the parties whether

they would object to its ordering that Senator Burris

should be included on the special election ballot by

fiat. Senator Burris supported that proposal. But the

plaintiffs noted that Senator Burris’s appointment to

the Senate did not give him a special claim to a spot on

the ballot over any other citizen, and Governor Quinn

added that the presence of Senator Burris on the list

of special election candidates might cause confusion

among voters if he was then absent from the list of gen-

eral election candidates on the same ballot. As the

hearing closed, the district judge asked Governor Quinn

and the plaintiffs to return later that week with a draft

injunction order. Senator Burris, still objecting to his

potential exclusion, asked to submit a brief in opposition

to any order, to which the court responded, “I don’t need

any briefs on this. But I will hear you fully when we

have an order . . . . [D]on’t be afraid that you won’t have

an opportunity to be heard.”

On July 29, the district court held its fifth and

final hearing. Governor Quinn and the plaintiffs

arrived having reached agreement on the contours of a

permanent injunction order. After a discussion about

how long the state would have to certify election

results, the court asked Senator Burris’s attorney what

right Senator Burris had to be placed on the special

election ballot as opposed to any other person. The attor-

ney responded, “I don’t know that Senator Burris is

suggesting that there is a right outside of the right

that should be afforded to any person to have ballot

access. He believes that to be a constitutional right.”

8 No. 10-2836

Senator Burris also submitted a brief in opposition to

the permanent injunction, in which he argued that the

district court had denied him the opportunity to be

heard and threatened to violate his right to access the

ballot by issuing an injunction.

The district judge decided it would adopt Governor

Quinn’s proposal, restricting the special election ballot

to those candidates slated to run in the general election.

At the same time, in Springfield, Illinois, Governor

Quinn issued a writ of election. He commanded the

clerks in each county “to cause a SPECIAL ELECTION to

permanently fill [President Obama’s vacancy] for the

remainder of Hon. Obama’s term to be held in the

STATE OF ILLINOIS on TUESDAY, NOVEMBER 2, 2010

in conformity with any applicable federal court orders

and, to the extent feasible, with the Illinois Election

Code . . . .”

On August 4, 2010, the district court entered its pre-

liminary injunction order. In the order, the district court

confirmed that the Illinois Election Code established

November 2 as the date for a special election, and it

found that the writ of election issued by Governor

Quinn complied with the federal Constitution and

Illinois law. In addition, the district court noted that it

had conducted five separate hearings “to consider pro-

cedures for conducting a special election on short no-

tice,” and it recognized that “to the extent that Illinois

law makes compliance with a provision of the federal

Constitution difficult or impossible, it is Illinois law that

must yield to the extent that it otherwise might apply

No. 10-2836 9

to cause delay or prevent action entirely.” See Judge II.

Noting that a primary election was not necessary and

that candidates had to be limited to a manageable

number, the court entered its order adopting Governor

Quinn’s candidate-selection plan. Senator Burris’s

appeal followed.1

II

We review a district court’s entry of a permanent in-

junction for an abuse of discretion. e360 Insight v. The

Spamhaus Project, 500 F.3d 594, 603 (7th Cir. 2007). In an

election law case, “[t]he essential question . . . is whether

the District Court properly exercised its equitable dis-

cretion in reconciling the requirements of the Constitu-

tion with the goals of state political policy.” Connor v.

Finch, 431 U.S. 407, 414 (1977).

Senator Burris’s principal contention in this appeal is

that the district court lacked the power to enter a perma-

nent injunction defining the mechanics of the Novem-

1

On September 3, 2010, Senator Burris filed a Motion for Stay

of District Court Order and a Petition for a Writ of Mandamus

in this court. Both of these represented efforts to prevent the

district court’s injunction from taking effect. This court denied

both the motion and the petition on September 8, 2010, at which

time we expedited this appeal. Senator Burris also filed an

Application (No. 10A272) with Justice Breyer, in his capacity as

Circuit Justice for the Seventh Circuit, seeking a stay of enforce-

ment of the district court’s judgment. On September 20, 2010,

Justice Breyer denied the Application.

10 No. 10-2836

ber 2 special election. This argument is split into

two closely related branches: first, the senator claims

that the lower court’s order concerns a nonjusticiable

political question; and second, he asserts that the injunc-

tion invades the exclusive province of the Illinois state

legislature, in violation of the Elections Clause and the

Seventeenth Amendment. In addition to these argu-

ments, Senator Burris takes the position that the per-

manent injunction interferes with his constitutional

right of access to the ballot.

A

We begin with the political-question argument, for if

this case presents an issue that falls within the scope of

that doctrine, then we lack authority to adjudicate it.

Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (citing

Luther v. Borden, 7 How. 1 (1849)). Contrary to the plain-

tiffs’ suggestion, it makes no difference whether Senator

Burris raised this argument before the district court;

it affects our jurisdiction and cannot be forfeited.

The political-question doctrine “identifies a class of

questions that either are not amenable to judicial resolu-

tion because the relevant considerations are beyond

the courts’ capacity to gather and weigh, . . . or have

been committed by the Constitution to the exclusive,

unreviewable discretion of the executive and/or legisla-

tive—the so-called ‘political’—branches of the federal

government.” Miami Nation of Indians of Indiana, Inc. v.

U.S. Dept. of the Interior, 255 F.3d 342, 347 (7th Cir. 2001).

The Supreme Court’s decision in Baker v. Carr sets out

No. 10-2836 11

the now-familiar factors that, if present, suggest that a

political question exists:

[A] textually demonstrable constitutional commit-

ment of the issue to a coordinate political department;

or a lack of judicially discoverable and manageable

standards for resolving it; or the impossibility of

deciding without an initial policy determination of

a kind clearly for nonjudicial discretion; or the impos-

sibility of a court’s undertaking independent resolu-

tion without expressing lack of the respect due co-

ordinate branches of government; or an unusual

need for unquestioning adherence to a political deci-

sion already made; or the potentiality of embarrass-

ment from multifarious pronouncements by various

departments on one question.

369 U.S. 186, 217 (1962). Importantly, the Baker Court

added that “[t]he doctrine . . . is one of ‘political questions,’

not one of ‘political cases.’ The courts cannot reject as

‘no law suit’ a bona fide controversy as to whether

some action denominated ‘political’ exceeds constitu-

tional authority.” Id. Senator Burris suggests that sev-

eral of the considerations Baker v. Carr identified as

tending to reveal a political question are present in his

case. In our view, however, the only ones that require

closer attention are whether there is a lack of judicially

manageable standards for implementing the special

election or if the conduct of that election is entirely com-

mitted to the political branches.

With respect to the first of those issues, both history

and constitutional text show that this case is not one

12 No. 10-2836

where reasonable people might disagree about the avail-

ability of judicially manageable standards. But compare

Vieth v. Jubelirer, 541 U.S. 267 (2004), and Davis v. Bandemer,

478 U.S. 109 (1986). The Seventeenth Amendment sup-

plies a concrete rule requiring an election to fill

each Senate vacancy. The district court turned to state

law, past practice in Illinois, and recent primary election

results to establish the timing of the required

special election and a fair slate of candidates to partici-

pate. Nothing that the court did in order to bring

Illinois’s election procedures into line with the Seven-

teenth Amendment was beyond its capacity.

Similarly, this case does not involve an issue com-

mitted to the exclusive discretion of one of the political

branches. Senator Burris takes the view that, because

the Constitution commits to the Illinois legislature the

job of defining the mechanics of a vacancy election,

the federal district court has no institutional role to play.

But a long line of decisions from the Supreme Court

demonstrate that he is wrong. The Court has said that

“[w]hen challenges to state action respecting matters of

the administration of the affairs of the State and the

officers through whom they are conducted have rested

on claims of constitutional deprivation which are

amenable to judicial correction,” federal courts may act

to address the merits of those claims. Baker, 369 U.S. at

229 (internal quotation marks and footnote omitted).

Indeed, the Court repeatedly has held that a federal court

may correct constitutional wrongs in areas generally

within the purview of state lawmakers, and it has

applied this principle to the area of elections. In addition

No. 10-2836 13

to Baker, supra, see William v. Rhodes, 393 U.S. 23, 28

(1968) (“[The state’s] claim that the political-question

doctrine precludes judicial consideration of these cases

requires very little discussion. That claim has been

rejected in cases of this kind numerous times.”); Bond v.

Floyd, 385 U.S. 116, 130 (1966) (“The State does not

claim that it should be completely free of judicial review

whenever it disqualifies an elected Representative; it

admits that, if a State Legislature excluded a legislator

on racial or other clearly unconstitutional grounds, the

federal judiciary would be justified in testing the exclu-

sion by federal constitutional standards.”); Reynolds v.

Sims, 377 U.S. 533, 585 (1964) (“[O]nce a State’s legisla-

tive apportionment scheme has been found to be uncon-

stitutional, it would be the unusual case in which a

court would be justified in not taking appropriate action

to insure that no further elections are conducted under

the invalid plan.”); Wesberry v. Sanders, 376 U.S. 1, 6-7

(1964) (noting that “nothing in the language of [the Elec-

tions Clause] gives support to a construction that would

immunize state congressional apportionment laws

which debase a citizen’s right to vote from the power of

courts to protect the constitutional rights of individuals

from legislative destruction”); Gomillion v. Lightfoot, 364

U.S. 339, 344-45 (1960) (striking down municipal bound-

aries that impaired voting rights and concluding

that “[l]egislative control of municipalities, no less than

other state power, lies within the scope of relevant li-

mitations imposed by the United States Constitution”).

As we noted in Judge II, where state action (or, as here,

inaction) infringes rights guaranteed by the federal Con-

14 No. 10-2836

stitution, the federal courts have the power to hear

cases and fashion remedies to redress the constitutional

wrong.

B

Senator Burris next asserts that the district court

usurped the constitutional role of the Illinois General

Assembly when it decided how candidates should be

selected for the special election and set a deadline for

certifying election results. The phrase “as the legislature

may direct,” which concludes the second paragraph of

the Seventeenth Amendment, U.S. C ONST. amend. XVII,

para. 2, affirms that the Amendment was not intended

to disrupt the allocation of power established by the

Elections Clause of the Constitution to dictate the terms

of elections. See U.S. C ONST. art. I, § 4, cl. 1. Judge I, 612

F.3d at 552-54; see also Newberry v. United States,

256 U.S. 232, 252 (1921). Accordingly, “State law con-

trols the timing and other procedural aspects of vacancy

elections. The Elections Clause obliges the state to

make these rules, and the final phrase of the Seventeenth

Amendment’s second paragraph reaffirms this role.”

Judge I, 612 F.3d at 554. Notwithstanding these au-

thorities, Senator Burris maintains that the district

court’s order offends the Constitution.

As an initial matter, Senator Burris failed to raise this

argument before the district court. And this argument,

unlike the justiciability claim we discussed above, can

be forfeited. A party who fails to present an argument

in the trial court forfeits the position on appeal, unless

No. 10-2836 15

we choose to entertain it “in the interests of justice.”

Humphries v. CBOCS West, Inc., 474 F.3d 387, 391 (7th

Cir. 2007). In this case, we see no reason to take this

unusual step. In the district court, Senator Burris was

perfectly content with the district court’s power to

fashion an order dictating what candidates would par-

ticipate in the November 2 special election, so long as

he was included among those candidates. He asked

the district court to implement a signature-gathering

mechanism that would allow him to earn a place on the

ballot; and, when that idea failed, he encouraged the

court to add him to the ballot by virtue of the fact that

he was the temporary appointee. Not once in the five

hearings before the injunction issued did Senator Burris

argue that the district court lacked the authority to estab-

lish a slate of candidates, and his written objections to

the injunction, submitted on July 29, do not mention

this point either. This court will not overturn an injunc-

tion based on an argument not presented to the district

court, Russian Media Group, LLC v. Cable America, Inc.,

598 F.3d 302, 308-09 (7th Cir. 2010), and there is no

good reason to make an exception in this case, where

Senator Burris took a position in the lower court that is

the opposite of the one he advances here.

Even if Senator Burris had not forfeited the argument,

he would be no better off. Our previous discussion of

the political-question doctrine amply demonstrates the

power of the district court to fashion an equitable

remedy in this case. In the face of a constitutional viola-

tion, it makes no difference that both the Elections

Clause and the final phrase of the Seventeenth Amend-

16 No. 10-2836

ment’s second paragraph assign primary responsibility

to the states for controlling the timing and other pro-

cedural aspects of vacancy elections. The same can be

said of countless other areas in which, once a constitu-

tional violation has been proven, federal courts have

the power to issue remedial orders tailored to the scope

of the constitutional violation. See, e.g., American Trucking

Ass’n, Inc. v. Smith, 496 U.S. 167 (1990) (state taxation);

Hutto v. Finney, 437 U.S. 678 (1978) (prison conditions);

Milliken v. Bradley, 418 U.S. 717, 744-45 (1974) (school

desegregation); Swann v. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. 1, 15 (1971) (school desegregation); Brown v.

Board of Education, 349 U.S. 294, 299-300 (1955) (school

desegregation). As Governor Quinn recently pointed out

in his opposition to a stay of the district court’s order in

the Supreme Court, “Once the appellate court . . . deter-

mined that the Seventeenth Amendment required . . . an

election, it was impossible to hold the election in the

manner set forth by the Illinois legislature. In that circum-

stance, the district court was required to remedy the

constitutional violation perceived by the Seventh Circuit,

something that was unquestionably within the court’s

power.” Memorandum of Governor Pat Quinn in Opposi-

tion at 16, Burris v. Judge, et al., No. 10A272 (U.S. Sept. 17,

2010) (citing Smith v. Robinson, 468 U.S. 992, 1012 n.15

(1984)).

C

With respect to Senator Burris’s final argument, we

can be brief. Senator Burris contends that the district

court’s order, which was designed to remedy a violation

No. 10-2836 17

of the Seventeenth Amendment, unconstitutionally

blocks not only his access to the ballot but also that of

any others who might be interested in running in the

special election. In support of this argument, Senator

Burris lists a number of cases where the Supreme

Court has struck down ballot access restrictions as vio-

lating the Equal Protection Clause, the First Amendment

guarantee of freedom of association, and the Qualifica-

tions Clause of Article I, Section 3. See Williams v. Rhodes,

393 U.S. 23 (1968), Anderson v. Celebrezee, 460 U.S. 780

(1983), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

(1995), respectively. But apart from alleging generally

that his exclusion from the November 2 special elec-

tion violates the Constitution, Senator Burris gives no

indication about which provisions of the Constitution

he is relying on or how his exclusion has caused the

violation. We have repeatedly reminded litigants, espe-

cially those represented by counsel, that compliance

with Rule of Appellate Procedure 28 requires more than

“a generalized assertion of error.” Anderson v. Hardman,

241 F.3d 544, 545 (7th Cir. 2001); see also Haxhiu v.

Mukasey, 519 F.3d 685, 691 (7th Cir. 2008). Senator Burris’s

claim that he has been unconstitutionally denied access

to the ballot leaves us with very little to evaluate.

For the sake of completeness, however, we observe

that the Supreme Court has explained that the effect of

ballot access restrictions on candidates always has a

correlative effect on the field of candidates among

whom voters might choose. Anderson, 460 U.S. at 786.

When analyzing candidate restrictions, we are “ ‘to ex-

amine in a realistic light the extent and nature of their

18 No. 10-2836

impact on voters.’ ” Id. (quoting Bullock v. Carter, 405

U.S. 133, 143 (1972)). For example, restrictions pose a

problem if they keep political parties off the ballot, Wil-

liams, 393 U.S. at 31, interfere with political expression,

Illinois Elections Bd. v. Socialist Workers Party, 440 U.S.

173, 186 (1979), or force indigent candidates to pay fees

they cannot afford, Lubin v. Panish, 415 U.S. 709, 718 (1974).

At the same time, however, candidacy itself is not a

fundamental right, and the Court has held “that the

existence of barriers to a candidate’s access to the

ballot ‘does not of itself compel close scrutiny.’ ” Clements

v. Fashing, 457 U.S. 957, 963 (1982) (quoting Bullock, 405

U.S. at 143). “[N]ot all restrictions imposed . . . on candi-

dates’ eligibility for the ballot impose constitutionally-

suspect burdens on voters’ rights to associate or to

choose among candidates. . . . ‘[A]s a practical matter,

there must be a substantial regulation of elections if they

are to be fair and honest and if some sort of order, rather

than chaos, is to accompany the democratic process.’ ”

Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (quoting

Storer v. Brown, 415 U.S. 724, 730 (1974)). In this case, two

considerations lead us to the conclusion that the

district court’s order does not run afoul of the Court’s

guidance on ballot-access restrictions. First, nothing in

the permanent injunction excludes a particular class

or group of candidates in a manner that suggests that

an identifiable group of voters will be left out of the

special election. Second, and more importantly, the

district court’s order is narrowly tailored to address

only one occasion; it will have no effect on future

elections in Illinois.

No. 10-2836 19

As we have already noted, the district court drew on

a procedure used in this circuit after Jackson v. Ogilvie,

426 F.2d 1333 (7th Cir. 1970), to define the mechanics of

the special election required by the Constitution. Senator

Burris attempts to derive a constitutional violation from

the district court’s effort to balance a constitutional re-

quirement, state election law, and the need to supply

a remedy in an expeditious fashion. But far from being

an additional constitutional error, the district court’s

effort did nothing more or less than vindicate constitu-

tional rights in light of the real-word consequences of

the necessary relief. See Weinberger v. Romero-Barcelo,

456 U.S. 305, 312 (1982). The district court had discretion

to limit the special election participants to names

already on the general election ballot in order to avoid

other problems, both constitutional and practical, that

might have arisen if the special election were left wide

open. Cf. Nader v. Keith, 385 F.3d 729 (7th Cir. 2004) (ap-

proving a district court’s refusal to enter an injunction

that would have interfered with an already-scheduled

election). Finally, the district court’s remedy, which

relies on candidates selected pursuant to the Illinois

Election Code, was designed to be, and probably is,

the most democratic and constitutionally sound ap-

proach the district court could have devised.

III

Senator Burris has asked us to vacate the district

court’s permanent injunction on the ground that it is

the job of the Illinois legislature, not the federal courts, to

20 No. 10-2836

establish election procedures that ensure that the seat

once held by President Obama in the U.S. Senate is filled

in a manner that complies with the Seventeenth Amend-

ment. Putting to one side the fact that the plaintiffs

brought suit to compel Governor Quinn and others to

act when they refused to do so, Senator Burris now con-

cedes that the consequence of granting him the relief

he seeks is that no special election will take place at all

in light of the complexity of the administrative steps

needed to prepare for the election. He says this is

normal, pointing to our observation in Judge I that

nearly 15% of the almost 200 vacancies in the last

century have been filed without a vote of the people.

But this statistic provides no support for Senator

Burris’s position. To the contrary, it demonstrates that

too often the requirements of the Seventeenth Amend-

ment have been ignored. Well-established principles of

equity require courts to consider, among other factors,

the balance of hardship between plaintiff and defendant

and the effect that the injunction would have on

the public before granting equitable relief. eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006). In this

case, the balance of hardships favors the plaintiffs, who—

along with the rest of the citizens of Illinois—will see

their Seventeenth Amendment rights vindicated in a

special election. For Senator Burris, it means only that

he will finish his temporary appointment in the Senate

two months earlier than he may have expected. In an

exceedingly short time, the district court considered the

arguments of all sides, forged agreement between the

parties, and reached a solution to bring the Illinois

No. 10-2836 21

election machinery into line with the federal Constitu-

tion. The district court is to be congratulated for

the fine job it did, under extreme time pressure, in re-

solving this case.

The district court’s order is A FFIRMED.

10-4-10