Jesse White may win against Burris

Illinois Secretary of State Jesse White’s (Madigan’s) filing in response to the Burris petition for Mandamus was posted a little while ago. It is actually quite brilliant, with a number of solid arguements.
http://www.state.il.us/court/supremecourt/specialmatters/burris_010709.pdf

The Illinois Court is fairly liberal…and may reach beyond a simple or strict reading and interpretation of the law…but if have they handle it straight…White may well win.

The most crucial element is that he is asserting, he has already completed ALL of the acts required of him under Illinois law, and since Burris has the Senate to provide remedy to his seating…Mandamus should not be granted.

The law requires him to “make a register of all appointments by the Governor” and he did that on Dec. 31 and nothing in the law tells him to do more. Just because the Rules of the Senate, require both the governor and secretary of state to certify the appointment, doesn’t mean he is legally required to under Illinois law.

If White wins…the Senate may be forced to change the rules to seat Mr. Burris. From the White response, I’d say White has about an 80% chance of getting the Writ of Mandamus refused.

That will put the Senate back on the hot seat…to change the Rules of the Senate, or be forced to seat him later by what would probably be the U.S. Supreme Court.

It really gets into a legal gray area…the SCOTUS would be forced to dance around the Senate’s right to make its own rules per Article I, based on the 17th Amendment.Article I (and the Rules of the Senate)and the 17th amendment come into conflict with each other, if Burris loses in his effort to get a Writ of Mandamus in Burris v. White so it will be interesting.