SELECTION FRAUD OR UNCONSTITUTIONAL EXCLUSION

A. ILLINOIS INTERNAL AFFAIRS

The United States Constitution authorizes states to exercise the option to legislatively grant the Governor the power to appoint a Senator until the next general election. The State of Illinois has chosen this option. It has been alleged that the Governor of Illinois, Rod Blagojevich, has acted improperly with regard to steps taken to fill the United States Senate seat vacated by President-elect Barack Obama. The Governor has not been convicted or impeached. As Governor, he is authorized to exercise the powers associated with his office. It is understandable that some people may be opposed to the Governor exercising the power of appointment. The Secretary of State of Illinois and several members of the United States Senate are among those who did not want the Governor to appoint a replacement.

The Governor issued a letter of appointment and a certificate of appointment in favor of Senator-designate Roland P. Burris. The Secretary of State for Illinois, Jesse White, has registered the appointment in the official records of the State of Illinois. This includes “specifying the person appointed, the office conferred, and the date of the appointment.” The appointment itself is not in dispute.

The Secretary of State refuses to perform the purely ministerial function “to countersign and affix the seal of state” to the certificate of appointment. A certificate of appointment is the document that Rule 2 of the United States Senate recommends for presentation as the credential of a “Senator designate.” This document facilitates access to the Senate floor, administration of the oath of office, and a seat on the Senate floor. This document is not the only way to prove that a person has been appointed to this position. The Senate knows that the Secretary of State does not have veto power over a gubernatorial appointment. Yet, there are members of the United States Senate who want to refuse to seat the Governor’s appointee if the Secretary of State has not signed a certificate of appointment.

B. SENATE EXCLUSION AND EXPULSION

The Senate “has an interest in preserving its institutional integrity.” Several Senators have, for practical purposes, taken the position that there is not one person in the State of Illinois they would accept if appointed by the Governor. This is a clear acknowledgement of a general effort to attack the appointment process. Some political operatives reportedly were willing to accept an appointee as long as it was the person they wanted. To date there is no specific basis to attack the appointment process with regard to Senator-designate Burris.

Generally speaking, exclusion and expulsion are the two mechanisms available to the Senate in order to prevent a person from serving who has been elected or designated by one of the fifty states. In 1969 the United States Supreme Court ruled in Powell v. McCormack that, “There are Constitutional limits on the power to exclude and on the power to expel.” The House of Representatives had unconstitutionally excluded Representative-elect Adam Clayton Powell. “He was not administered the oath of office and was prevented from taking his seat.”

Exclusion is the mechanism to prevent a person from being seated as a Senator. A simple majority vote is required to exclude. Pursuant to the Constitution, Art. I, § 5, Congress is “Judge of the Qualifications of its own Members.” The Constitution leaves Congress “without authority to exclude any person,” duly selected, “who meets all the requirements for membership expressly prescribed in the Constitution.” The Constitution denies “either branch of Congress the authority to add to or otherwise vary the membership qualifications expressly set forth in the Constitution.” "The Constitution lays down three qualifications for one to enter Congress -- age, inhabitancy, citizenship.”

Expulsion is the mechanism to remove a sitting Senator for actions during their term of office. A prerequisite to investigate and expel for misconduct is to allow for the target to take the oath and be seated. There is a constitutional requirement for 2/3 of the members to vote to expel or require a Senator to “surrender his seat.” This threshold safeguard prevents a majority from trying to take over the Senate.

The Supreme Court has stated, "That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.” The Supreme Court further expressed the sentiment that “A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." 2 Elliot's Debates 257.” The citizens of Illinois have spoken through their Governor.

Interestingly enough, according to the United States Supreme Court, Constitutional history shows that John Dickinson, of Delaware, initially “opposed the inclusion of any statement of qualifications in the Constitution.” To include qualifications would prevent Congress from exercising unfettered discretion to exclude. Fortunately our founding fathers heeded Madison’s warning that “vesting an improper & dangerous power” in the Congress to decide what the qualifications for office are could lead to the majority essentially exercising the power to expel “under the guise of judging qualifications.” “In judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution.”

C. DELAWARE

How lucky we are in Delaware that Dickinson’s position was rejected. The Constitution protects states, like Delaware, from improper federal intervention in our affairs. I ask my fellow Delawareans, what would you do if after Delaware Senator Joseph Biden resigns, the United States Senate refuses to seat a Senator-designate from Delaware because they believe Governor-elect Jack Markell should make the appointment instead of outgoing Governor Ruth Ann Minner or because they are opposed to the plan of Governor Minner to appoint a placeholder to the Delaware Senate seat? Many Delawareans would be up in arms and others would rejoice. What if the Delaware Secretary of State refused to sign and affix the seal of Delaware to the certificate of appointment because she did not want the Governor to exercise the power of appointment? The reason why there are Constitutional safeguards and ministerial functions is for days like today when public servants try to raise their political interests above the good of the country as expressed in the Constitutions of this country and the respective states.

D. STATESMEN

In this Constitutional episode, the Secretary of State of Illinois and several United States Senators are attempting to usurp the power of the State of Illinois, its people, legislature, and Governor as well as the right of Senator-designate Roland P. Burris to serve. There is a Constitutional crisis at hand because of a failure of leaders in our country to honor the rules of the game as opposed to attempting to meet the political objectives of particular individuals. It is without dispute that Illinois Senator-designate Roland Burris was duly selected by the sitting Governor of the State of Illinois. Using the language from the Constitutional decision in the case of Powell vs. McCormack, “He is not ineligible to serve under any provision of the Constitution.” The Senate is “without power to exclude him from its membership.”

We have a delicately balanced system of government. States have rights. The United States Constitution is the final word when there is a dispute related to the sovereignty of the fifty states. President-elect Barack Obama and Vice President-elect Joseph Biden, who have both taught constitutional law to law students, must shed their allegiance to the United States Senate and stand firm and tall in their new positions as guardians of the people, our country, and our Constitution. They must be the Statesmen we expect them to be. This is a Constitutional law exam that no one can afford to fail. If Illinois Senate-designate Roland Burris appears at the Senate door, it can not be unconstitutionally closed in his face with their silence or blessings.

By Samuel L. Guy, Esquire, Wilmington, Delaware. MBA, MPA, MI, MED

sguyl@yahoo.com, (302) 655-1904, P.O. Box 25464, Wilmington, DE 19899, www.samguy.com

As an elected official, lawyer, civil rights leader, and educator, Sam Guy has demonstrated visionary leadership positively impacting Delawareans to this day and on into the future.

Mr. Guy has created opportunities for others to succeed. He is referred to by some as "JusticeDE" and "Governor" in recognition of his statewide efforts in support of justice, fairness, and equal opportunity, thus leading to the receipt of numerous awards. Attorney Guy served as a Wilmington City Councilman (At-Large) from 1997-2001.