Is Illinois' Secretary of State, Jesse White, doing his job? Does he have a legal option to interfere with the Illinois Governor's U.S. Senate appointment of former Illinois Attorney General Roland Burris?
In describing the duties of the office, the law uses the word "shall", which is generally interpreted to make an action mandatory.
(from Ch. 124, par. 5)Sec. 5. It shall be the duty of the Secretary of State:
1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed. If Senate confirmation is required, the date of the confirmation shall be included in the register.
The United States Constitution (17th Amendment) describes how vacancies are to be filled in the United States Senate:
The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.
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.
Adversaries to the Burris appointment rely on Article 2, Section 5 of the U.S. Constitution:
Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members...
The Constitution, however does not empower the legislature to create qualifications for office. Section 3 of Article 2 spells out the qualifications rather clearly:
No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
It is pretty easy to determine that Mr. Burris's age exceeds 35 years, that he has been a Citizen for well over nine years, and that he lives in Illinois. Senate Rule II, Section 2 potentially creates a new qualification or a new condition above what the Constitution requires when it insists on a countersignature from a state's Secretary of State. It reads:
2. The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed.So, is White impeachable for not signing off? Has the U.S. Senate overridden the Constitution by requiring White's signature?