The opinion of the court was delivered by: John F. Grady, United States District Judge
Before the court are defendants' motions to dismiss the complaint and plaintiffs' motion for a preliminary injunction. We grant defendants' motions and deny plaintiffs' motion for the reasons explained below.
The facts alleged in plaintiffs' complaint, which we accept as true for the purposes of defendants' motions, are mostly matters of public record. On November 16, 2008, then-President Elect Obama resigned his Senate seat, creating a vacancy that former-Illinois Governor Rod Blagojevich filled by executive order appointing defendant Roland Burris. (See Certificate of Appointment, dated December 31, 2008, attached as Ex. A to Pls.' Mem. in Supp. of Mot. for Prelim. Inj. (hereinafter, "Pl. Mem.").)*fn1 The Certificate of Appointment provides that Senator Burris will serve until the seat is "filled by election as provided by law." (Id.) Under Illinois's Election Code, that election will be held at the next general congressional election in November 2010. See Illinois Election Code, 10 ILCS § 5/25-8. Plaintiffs, registered Illinois voters who intend to vote in the vacancy election, contend that the Seventeenth Amendment requires Governor Quinn to call a special election well in advance of that date. They have filed a two-count complaint, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02, asking us to (i) declare that § 25-8 is unconstitutional, and (ii) require Governor Quinn to "issue a writ for a special election to be conducted as soon as practical." (First Am. Compl. at 6-7.) We denied Senator Burris's request to appear as amicus curiae because we concluded that he must be joined as a party under Fed. R. Civ. P. 19. (See Order of Mar. 11, 2009.)*fn2 Plaintiffs have amended their complaint to join him as a defendant, and the parties' motions are now fully briefed.*fn3
A. Whether the State is Prohibited from Conducting a Vacancy Election on a Date Other Than November 2, 2010
Senator Burris argues that federal statutes prohibit the state from conducting a vacancy election on any date except November 2, 2010. Because this is an ostensibly non-constitutional basis for denying at least one facet of plaintiffs' claims, we address it first. See Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006) ("Non-constitutional arguments always come first; constitutional contentions must be set aside until their resolution is unavoidable."). Article I, § 4, cl.1 of the Constitution authorizes the states to set the "Times, Places and Manner of holding Elections for Senators," but "only so far as Congress declines to preempt state legislative choices." Foster v. Love, 522 U.S. 67, 69 (1997); see U.S. Const. Art. I, § 4, c.1 (authorizing Congress to "make or alter" congressional-election regulations, "except as to the places of choosing senators"). Congress requires states to conduct Senate elections on the "Tuesday next after the 1st Monday in November" preceding the date when the incumbent Senator's term expires. See 2 U.S.C. §§ 1, 7. Senator Burris argues that these provisions apply to Senate vacancy elections. We disagree. Section 1 applies only to the regularly scheduled Senate election preceding the end of the incumbent's term in office. See 2 U.S.C. § 1 ("At the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State in Congress, at which election a Representative to Congress is regularly by law to be chosen . . . .") (emphasis added). A separate provision authorizes states to prescribe the "time" for filling vacancies by election, including vacancies caused by resignation. See 2 U.S.C. § 8.*fn4 Section 8 refers only to "Representative[s]" and "Delegate[s]," but it has been construed to apply by implication to Senators as well. See Public Citizen v. Miller, 813 F.Supp. 821, 829 n.8 (N.D. Ga. 1993), aff'd, 992 F.2d 1548 (11th Cir. 1993); see also Foster, 522 U.S. at 71 n.3 (citing Public Citizen with approval). This provision authorizes the states to conduct vacancy elections on dates other than the date dictated by 2 U.S.C. §§ 1 and 7. See Public Citizen, 813 F.Supp. at 830; Busbee v. Smith, 549 F.Supp. 494, 524-25 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983).*fn5 Foster v. Love struck down Louisiana's "open primary" system, which in most instances led to the election of a Senator and/or Representative in the October preceding the November federal election. Foster, 522 U.S. at 70. It did not involve a vacancy created by resignation, and does not control the outcome of this case. We reject Senator Burris's argument that a vacancy election can only be held on November 2, 2010.*fn6
B. The Seventeenth Amendment and Illinois's Vacancy Statute
Before the states ratified the Seventeenth Amendment in 1913, United States Senators were appointed by state legislatures. See Laura A. Little, An Excursion Into the Uncharted Waters of the Seventeenth Amendment, 64 Temp. L. Rev. 629, 632 (1991). The Seventeenth Amendment eliminated that practice, providing for direct elections and prescribing the procedure for filling vacancies:
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
U.S. Const. amend. XVII. Illinois, pursuant to the proviso, enacted the following vacancy statute soon after the states ratified the Seventeenth Amendment:
When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
10 ILCS § 5/25-8 (emphasis added). Plaintiffs contend that this statute is unconstitutional because it usurps the governor's duty to call a special election, authorizes an impermissibly long period of time between the vacancy and the election, and compels (rather than "empowers") the governor to make a temporary appointment in the interim.*fn7 They rely in part on cases construing Article I, §2, cl.4, which governs the procedure for filling vacancies in the United States House of Representatives and contains language nearly identical to the Seventeenth Amendment's "writs-of-election" clause. See U.S. Const. art. I, § 2, cl. 4 ("When vacancies happen in the Representation from any State, the Executive Authority shall issue Writs of Election to fill such Vacancies."); Jackson v. Ogilvie, 426 F.2d 1333, 1336 (7th Cir. 1970) (concluding that the "writs-of-election" clause is mandatory and requires the governor to call a special election, subject to procedural rules set by the state legislature); American Civil Liberties Union v. Taft, 385 F.3d 641, 649 (6th Cir. 2004) (similar). That provision does not contain anything comparable to the Seventeenth Amendment's proviso, but plaintiffs argue that the proviso should be read narrowly to ...