Gerald Judge v. Roland Burris

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2836

GERALD A. JUDGE and DAVID

KINDLER ,

Plaintiffs-Appellees,

v.

PAT QUINN , Governor of

the State of Illinois,

Defendant,

and

ROLAND W. BURRIS , 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.

2 No. 10-2836

SUBMITTED SEPTEMBER 22, 2010* — D ECIDED SEPTEMBER 24, 2010

O PINION **

Before ROVNER , WOOD , and TINDER , Circuit Judges.

WOOD , 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 November 2 is fast

approaching and in the interest of a manageable 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 November 2 ballot in the general election to fill

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

Congress. 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

*

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).

**

This opinion is being issued in typescript; printed version

to follow .

No. 10-2836 3

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 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 senator. To ensure that such

an election takes place, the executive officer of the state is

required by the Constitution to issue a writ of election. The

timing and mechanics 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 Seventeenth

Amendment permits the state legislature to empower the state

executive to fill a Senate vacancy temporarily by appointment,

until a special election takes place. Judge I, 612 F.3d at 554-55.

At the time of the plaintiffs’ 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 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 plaintiffs’ claim in a timely fashion. Because the

4 No. 10-2836

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

injunction, 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 opposition. In response, the plaintiffs proposed a

number of potential solutions to the purported timing and

candidate-selection problems. The district court postponed its

decision while Governor Quinn filed a petition in this court for

rehearing.

On June 28, 2010, Governor Quinn filed his petition for

rehearing and rehearing en banc. Among other arguments, he

again asserted that it would be impossible for Illinois to

prepare for a special election in compliance with the Illinois

Election Code in the time remaining before November 2. The

plaintiffs filed an expedited 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

No. 10-2836 5

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. 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 Representatives 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 opposed any

plan that would leave him (or other interested citizens, he said)

off the special election ballot. He proposed 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 response, the

district court asked the parties whether they would object to its

6 No. 10-2836

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 general 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

attorney 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.” 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

No. 10-2836 7

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 preliminary

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

procedures for conducting a special election on short notice,”

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 to cause delay or prevent

action entirely.” 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 injunction

for an abuse of discretion. e360 Insight v. The Spamhaus Project,

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 enforcement of the district court’s

judgment. On September 20, 2010, Justice Breyer denied the

Application.

8 No. 10-2836

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 discretion in reconciling the

requirements of the Constitution 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 permanent injunction

defining the mechanics of the November 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

injunction invades the exclusive province of the Illinois state

legislature, in violation of the Elections Clause and the

Seventeenth Amendment. In addition to these arguments,

Senator Burris takes the position that the permanent 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 plaintiffs’ 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 resolution 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 legislative – 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 the now-

familiar factors that, if present, suggest that a political question

exists:

No. 10-2836 9

[A] textually demonstrable constitutional commitment 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 impossibility of a court’s undertaking

independent resolution without expressing lack of the

respect due coordinate branches of government; or an

unusual need for unquestioning adherence to a political

decision already made; or the potentiality of

embarrassment 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 constitutional authority.” Id. Senator Burris

suggests that several 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 committed to the

political branches.

With respect to the first of those issues, both history and

constitutional text show that this case is not one where

reasonable people might disagree about the availability 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 supplies 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 participate.

Nothing that the court did in order to bring Illinois’s election

procedures into line with the Seventeenth Amendment was

beyond its capacity.

10 No. 10-2836

Similarly, this case does not involve an issue committed 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 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 exclusion by federal

constitutional standards.”) ; Reynolds v. Sims, 377 U.S. 533, 585

(1964) (“[O]nce a State’s legislative apportionment scheme has

been found to be unconstitutional, 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 Elections Clause]

gives support to a construction that would immunize state

congressional apportionment laws which debase a citizens

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, 344-345 (1960)

No. 10-2836 11

(striking down municipal boundaries that impaired voting

rights and concluding that “[l]egislative control of

municipalities, no less than other state power, lies within the

scope of relevant limitations 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

Constitution, 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. CONST .

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. CONST . 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 controls 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

authorities, 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 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 participate in the

12 No. 10-2836

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 establish 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 injunction 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 violation, it makes no difference that both the

Elections Clause and the final phrase of the Seventeenth

Amendment’s second paragraph assign primary responsibility

to the states for controlling the timing and other procedural

aspects of vacancy elections. The same can be said of countless

other areas in which, once a constitutional 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); 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). 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 . . . determined 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 circumstance, 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

Opposition at 16, Burris v. Judge, et al., No. 10A272 (U.S. Sep. 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 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 violating the

Equal Protection Clause, the First Amendment guarantee of

freedom of association, and the Qualifications 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 election 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, especially 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 examine in a realistic light the extent

and nature of their impact on voters.’” Id. (quoting Bullock v.

14 No. 10-2836

Carter, 405 U.S. 133, 143 (1972)). For example, restrictions pose

a problem if they keep political parties off the ballot, Williams,

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 candidates’ 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.

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 requirement, 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 constitutional rights in light of the real-word

consequences of the necessary relief. See Weinberger v. Romero-

No. 10-2836 15

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) (approving 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 approach 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 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 Amendment. 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

concedes 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 Amendment 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

16 No. 10-2836

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

election machinery into line with the federal Constitution. The

district court is to be congratulated for the fine job it did, under

extreme time pressure, in resolving this case.

The district court’s order is AFFIRM ED .