IL-SCT: White Doesn't Have To Sign Burris Certificate

Remember what I said yesterday about the Senate Standing Rules and legal meaning of Illinois Secretary of State Jesse White's refusal to sign the certificate of appointment of Roland Burris to the United States Senate?

Turns out, White was right.  Or, at least, some folks in Springfield think so, as a unanimous Illinois Supreme Court has ruled today that White can't be forced to sign the Burris appointment certificate, but Court thinks it shouldn't matter anyway for Senate confirmation purposes.

Here's the Court's opinion (PDF).  Most of it rests on distinctions between "appointments" (just have to register in a book) and "commissions" (have to sign) under Illinois law that none of us are going to care about after this is over, and really, what we want to know are the implications for his confirmation by the Senate.  So this is seven justices' way of saying "Harry, c'mon, nothing in the Senate rules actually requires this seal":

As noted in the Attorney General opinion cited above, the only purpose a signature and seal could serve in this case is an evidentiary one. It would confirm that the appointment had, in fact, been made. At this point, however, there is no question at all that the Governor did, in fact, make the appointment. If there was ever any question about that on the part of the United States Senate, it should have been removed when the Governor’s envoy appeared at the Senate with a copy of the certificate of appointment in hand.

In their pleadings, Petitioners suggest that the United States Senate has taken the view that the Governor’s signed, hand-delivered certificate of appointment is insufficient to meet the requirements of the Senate’s own internal rules. We note, however, that nothing in the published rules of the Senate, including Rule II, appears to require that Senate appointments made by state executives pursuant to the seventeenth amendment must be signed and sealed by the state’s secretary of state. Moreover, no explanation has been given as to how any rule of the Senate, whether it be formal or merely a matter of tradition, could supersede the authority to fill vacancies conferred on the states by the federal constitution. Under these circumstances, the Senate’s actions cannot serve as the predicate for a mandamus action against the Secretary of State. The only issue before us is whether the Secretary of State, an official of this state, failed to perform an act required of him by the law of Illinois. He did not.

Petitioners argue, in the alternative, that the Secretary of State had a mandatory duty under certain acts of Congress to sign and affix the seal of this state to Mr. Burris’ appointment as Senator. This argument is wholly without merit. The provisions invoked by Petitioners, 2 U.S.C. sections 1a and 1b, apply, by their terms, to situations where a vacancy is filled by election. The situation here involves the filling of a vacancy through appointment.

Finally, the Court notes, if someone really wants White's seal on this certificate that badly, there's another way to get it under the law:

There is one final point we feel constrained to mention. While the Secretary of State has no duty under Illinois law to sign and affix the state seal to the certificate of appointment issued by the Governor, he does have a duty under section 5(4) of the Secretary of State Act (15 ILCS 305/5(4) (West 2006)) "to give any person requiring the same paying the lawful fees therefor, a copy of any law, act, resolution, record or paper in his office, and attach thereto his certificate, under the seal of the state."

The registration of the appointment of Mr. Burris made by the Secretary of State is a "record or paper" within the meaning of this statute. A copy of it is available from the Secretary of State to anyone who requests it. For payment of the normal fee charged by the Secretary of State in accordance with this statute, Petitioners could obtain a certified copy bearing the state’s seal. Because such relief is possible, no order by this court is necessary or appropriate.

It is, to be sure, a bit presumptuous for the Illinois Supreme Court to tell the United States Senate how to read its own rules or the Constitution ... except, in this case, they happen to be right.  As I said yesterday, the 17th Amendment empowers the Governor of a state to make interim Senate appointments, not the Governor-as-long-as-the-Secretary-of-State-agrees. White can't get in the way of the Constitution, and neither can the Secretary of the Senate.  

If the Senate wants to block Roland Burris' appointment, the Senators themselves will have to do so under Article I, Section 5.  Call this the judging of a "Return," send it to Rules, and decide if you'll swear in Burris on a provisional basis until then.  Anything else is just stalling.

edited, 5:30 pm EST:  Great.  Sen. Durbin doesn't agree with the Court's interpretation of Senate rules, claiming the Senate cannot waive itsrule requiring the signatures of both the governor and the secretary of state on any election or appointment.  Except, as Kagro notes, when it does.