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Some more on Burris

By Jack M. Balkin

I'm not sure that Sandy's got this locked down. The 17th amendment says that "the executive authority" of the state "shall issue writs of election" to fill vacancies. (Incidentally, that phrasing suggests, contrary to my earlier comment and the widely circulated Amar/Chaftez analysis, that the Senate's role here really is judging an election rather than a return.) Who "the executive authority" is, is -- I would think -- a matter of state law, subject perhaps to some federal constraint on ridiculously arbitrary definitions (akin to the so-called Article II argument in Bush v. Gore). And it doesn't seem to me that a state is required to define "the executive authority" for purposes of the 17th amendment as "the governor" (or even in the same way that it defines "the executive authority" -- if it does -- for other purposes), or that defining "the executive authority" to be "the governor and the secretary of state, for these purposes" is ridiculously arbitrary (or, perhaps more accurately, that the Senate owuld be acting improperly were it to decide that such a definition was not ridiculously arbitrary).

Full post as published by Balkinization on January 07, 2009 (boomark / email).