Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 C 1231-John F. Grady, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge
ARGUED SEPTEMBER 17, 2009
Before ROVNER, WOOD, and TINDER, Circuit Judges.
Constitutional specialists and U.S. history buffs will recall that the original Constitution of 1787 took a cautious approach toward the election of public officials. It interposed the Electoral College between the voters and the President, U.S. CONST. art. II, § 1, and it provided that each state's two senators would be chosen by the state legislature, U.S. CONST. art. I, § 3. "Judges of the supreme Court" were to be appointed by the President, "by and with the Advice and Consent of the Senate." U.S. CONST. art. II, § 2. Only the members of the House of Representatives were to be "chosen . . . by the People of the several States." U.S. CONST. art. I, § 2.
In 1913, the Seventeenth Amendment to the Constitution effected a fundamental change in the legislative branch of government by providing for the direct election of senators. The amendment also changed the rules for filling vacancies in a state's senatorial delegation. Under the original Constitution, the executive authority of the state could make a temporary appointment, which would last until the next meeting of the legislature. The Seventeenth Amendment modified that process, to reflect the fact that, in principle, senators were to be elected by the voters. The relevant language is as follows:
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 em-power 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 para. 2. That passage may look straightforward, but this appeal has demonstrated that there is more to it than meets the eye. We must decide whether the system that Illinois is using to fill a famous vacancy in one of its senate slots has strayed so far from the mark that a preliminary injunction should have been entered by the district court. We conclude that the district court did not abuse its discretion in refusing the requested injunction, and we therefore affirm its order.
Our case began after Barack Obama, then the junior senator from Illinois, won the presidential election on November 4, 2008. The next week, President-elect Obama wrote to Rod Blagojevich, then the governor of Illinois, announcing that the President-elect would resign his position in the U.S. Senate, effective November 16, 2008. Two years and 48 days remained in his six-year term at the time of his resignation. The President-elect's resignation created an immediate vacancy in one of Illinois's two senate seats. On December 31, 2008, then-Governor Blagojevich named Roland Burris, a former Attorney General of Illinois, to assume the Obama seat. A certificate of appointment signed by the governor said that the appointment was to last "until the vacancy . . . caused by the resignation of Barack Obama, is filled by election as provided by law." Mr. Burris took the oath of office on the Senate floor on January 15, 2009.
In the meantime, the Illinois House of Representatives voted to impeach Governor Blagojevich; it returned a wide-ranging article of impeachment alleging that the governor had abused his powers, including his power to appoint a U.S. Senator. On January 29, 2009, the Illinois Senate convicted Governor Blagojevich and relieved him of duty. Lieutenant Governor Pat Quinn assumed the office of Governor of Illinois.
Upon Senator Burris's taking office, David Kindler and Gerald Judge, both registered voters in Illinois, sued Governor Quinn under 42 U.S.C. § 1983, alleging a violation of their rights guaranteed by the Seventeenth Amendment to the U.S. Constitution. The plaintiffs wanted the district court to declare the provisions in the Illinois Election Code for filling U.S. Senate vacancies unconstitutional and to issue an injunction requiring an election to select the person to complete the Obama term. In particular, they objected to the following part of the Illinois Election Code:
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 (West 2010). According to this provision, the date for the election to fill the Obama vacancy is set for November 2, 2010. (Sixty-two days will elapse between that day and the start of the 112th Congress on January 3, 2011.) The plaintiffs argued that this provision of the Illinois Election Code contravenes the second paragraph of the Seventeenth Amendment by allowing Senator Burris to serve as an appointee for an unreasonably long period of time and by saying nothing about Governor Quinn's duty to issue a writ of election. Governor Quinn's continuing failure to issue a writ of election (and Governor Blagojevich's failure to do so before him), they asserted, violated the same constitutional command. The primary relief that the plaintiffs originally requested was an injunction requiring Governor Quinn to "issue a writ for a special election to be conducted as soon as practical to fill the vacancy."
Their motion for a preliminary injunction asked the court to "order the Governor to comply with the Seventeenth Amendment by issuing a writ setting an election to fill the vacancy in the Senate seat, not in November, 2010, but at the earliest practical date." Governor Quinn responded with a motion to dismiss, in which he argued that neither his actions nor the Illinois Election Code violated the federal Constitution. Senator Burris submitted a brief in opposition to the complaint as well, at which point the district court concluded that he was a party that had to be joined under Federal Rule of Civil Procedure 19. The plaintiffs obliged and added him as a defendant.
At that point, the plaintiffs replied to both defendants' motions to dismiss. In this filing, which the district court construed as a reply brief for purposes of the motion for a preliminary injunction, the plaintiffs advanced a new argument: the Illinois statute violated the Seventeenth Amendment because it denied the Illinois governor discretion to decline to make a temporary appointment to a vacant senate seat and to opt instead for an immediate election. In addition, the plaintiffs clarified that they were asking for an injunction "requiring the Governor to issue a writ setting a date for a special election to fill the vacancy in the Obama seat." But the details of their request shifted substantially: instead of pressing for an election at the earliest practical time, they now argued that the election should occur "on a reasonable, but relatively early date," or at a minimum, that "the Governor must be ordered to exercise his discretion by acting to set some date for a special election." (Emphasis added.)
On April 16, 2009, the district court granted the defendants' motions to dismiss and denied the plaintiffs' request for a preliminary injunction. The court refused to consider the challenge to the Illinois Election Code that the plaintiffs had introduced in their reply brief. It did, however, dismiss the case without prejudice, allowing the plaintiffs time to amend their complaint to present that claim properly. The plaintiffs did so, but they also appealed the district court's denial of their request for a preliminary injunction. See 28 U.S.C. § 1292(a)(1).
Before turning to the central questions on appeal, we must clarify what exactly is before us. Two of the claims that the plaintiffs have advanced are not. First is the argument that the plaintiffs raised for the first time in their reply brief, to the effect that the Illinois statute is unconstitutional because it requires the governor to make a temporary appointment when a senate vacancy arises, rather than "empowering" him to choose whether or not to make such an appointment. The district court was under no obligation to entertain this late submission, nor should we. Spitz v. Tepfer, 171 F.3d 443, 448 (7th Cir. 1999). Second is the initial contention that Governor Quinn is under an obligation to order an election to fill the vacancy that will take place as soon as possible. The plaintiffs' briefs disavow any argument relating to the timing of the election that they seek, and when we pressed them at oral argument, they explicitly abandoned this position.
More puzzling is whether we may consider the argument that the plaintiffs do make before this court. The plaintiffs take the position that Governor Quinn must issue a writ of election fixing some date for an election to fill Illinois's vacant senate seat, but they do not name a date on which that election should take place. Both sides agree that a writ of election must include a date on which the election in question will occur. But the defendants argue that the plaintiffs have waived the argument that a writ must issue regardless of the election date that it incorporates because the plaintiffs did not develop the argument sufficiently before the district court. E.g., Kunz v. DeFelice, 538 F.3d 667, 681 (7th Cir. 2008).
In this instance, we conclude that the defendants are being too picky. The district court decided that the procedure prescribed by the Illinois Election Code was all that the Seventeenth Amendment required. It found that Illinois law calls for an election to fill the vacancy at the same time as the November 2, 2010, general election; Governor Blagojevich appointed Senator Burris to serve until an election took place, as provided by Illinois law; and the total duration of the vacancy-roughly two years, measured from Senator Obama's resignation until the November 2010 general election-was not unreasonable in light of Valenti v. Rockefeller, 292 F. Supp. 851 (W.D.N.Y. 1968), summarily aff'd, 393 U.S. 405 (1969) (per curiam). The district court concluded that because the plaintiffs could not show that the procedures set out in the Illinois statute violated their constitutional rights, they were not entitled to an injunction requiring Governor Quinn to issue a writ of election calling for a special election to take place prior to November 2010. The court found it unnecessary to decide whether the Seventeenth Amendment requires the governor to issue a writ of election, even if it names November 2, 2010, as the designated date.
We are satisfied that the plaintiffs have preserved their right to argue that a writ of election is constitutionally required. They presented this position both to the district court and in this court. Their argument that Governor Quinn must issue a writ calling for an election to fill the senate vacancy on a date as soon as possible encompasses the claim that the governor must issue a writ of election. As they have asserted since the opening line of their first complaint in the district court, "This is an action . . . seeking to redress the ongoing violation of the Seventeenth Amendment . . . by the failure of defendant, as Governor of Illinois, to issue a writ for a special election to fill a vacancy in the United States Senate." Accordingly, we may consider whether the plaintiffs are entitled to a preliminary injunction ordering Governor Quinn to issue a writ of election calling for an election specifically to fill out the remainder of President Obama's term in the 111th Congress (rather than an election to choose the junior senator from Illinois for the 112th Congress).*fn1
One more preliminary matter must be addressed before we turn to the main event: the defendants argue that the plaintiffs lack standing to pursue the injunctive relief that they seek. This is the case, the defendants say, because the only injury that the plaintiffs allege is the inability to hold the Illinois governor, rather than the state legislature, accountable for setting the date of the election for the vacancy. The defendants assert that this injury is not sufficiently concrete or specific to the plaintiffs to invoke the jurisdiction of the federal courts.
Article III of the Constitution limits federal judicial power to the resolution of cases and controversies. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 597-98 (2007). Standing rules implement this limitation. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). A plaintiff satisfies constitutional standing requirements by showing that the challenged action of the defendant caused an "injury in fact" that is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-62 (1992). The alleged injury must be concrete and particularized, and either actual or imminent. Massachusetts v. EPA, 549 U.S. 497, 517 (2007).
The plaintiffs allege that Governor Quinn's failure to issue a writ of election will injure them because without a writ of election, an election to fill the senate vacancy left by President Obama will never take place-not on November 2, 2010, or any other date. The plaintiffs argue that, if things remain as they are now, Senator Burris will serve until the next Congress begins on January 3, 2011, at which time an entirely new term for one of Illinois's senators will begin. The State of Illinois appears to agree that this will be the practical effect of the state's system. In an opinion letter to leaders in the Illinois legislature, Illinois Attorney General Lisa Madigan wrote: "Under the current language of [10 ILCS 5/25-8], U.S. Senator Burris's temporary appointment will conclude in January 2011 following an election in November 2010, the next election of representatives in Congress." Senatorial Vacancy under the Seventeenth Amendment, 2009 Op. Ill. Att'y Gen. No. 09-001, 2009 WL 530827 (Ill. A.G. Feb. 25, 2009). In addition, the Illinois State Board of Elections's current list of offices that will appear on the November 2, 2010, ballot in Illinois does not specify that there will be an election on that date to fill the balance of President Obama's senate term. See State of Illinois Candidate's Guide 2010, at i, available athttp://www. elections.state.il.us/Downloads/ElectionInformation/ PDF/2010Canguide.pdf (last visited June 15, 2010). This evidence suggests that without a writ of election calling for an election to fill the Obama vacancy, the plaintiffs will not have an opportunity to elect a replacement senator.
It is clear enough that the plaintiffs' alleged injury is traceable to Governor Quinn's conduct and would be redressed by a favorable decision. The district court, for example, could prevent the injury by granting an injunction requiring Governor Quinn to issue a writ of election to supply a replacement senator for the fast-waning Obama term, rather than for the new Congress. The more substantial issue is ...