The state constitution states that, when a vacancy occurs, in the office of attorney general, secretary of state, treasurer, or comptroller, the governor will appoint a replacement who will serve until the next regularly-scheduled election for that office. I wish that Gov. Quinn couldn’t appoint a comptroller for the next four years, but I think he can do that, according to the constitution.
I know that that’s what the state constitution says, but it doesn’t answer the question of *when the vacancy occurs*. Of course, there’s a vacancy in the office of treasurer right now, but that’s a vacancy in the office for the term that expires on January 12, and that’s the only vacancy that I believe that Quinn can fill right now. The office of the treasurer for the term running from January 2015 until January 2019 will not become officially vacant until January 12, 2015, when such term begins, and the person elected to such term (Topinka) can’t take the oath of office due to her having died the prior month; that’s the vacancy that I posit cannot be filled until January 12, 2015, which happens to be the day that Rauner becomes governor.
Look at it this way: Let’s say that Topinka had lost her reelection; her death would allow Quinn to name her replacement to serve only until January 12, 2015, when the new term begins, and the winner of November’s election would be sworn in at that point. Even if the winner of the November election then died on January 1, the person that Quinn named in December as Topinka’s replacement would continue to serve as treasurer until January 12, and on that day, given that the winner of the election could not become treasurer because of his prior death, the governor would have to appoint a new treasurer, to serve until a special election is held (probably November 2016).
Or how about this scenario: Topinka loses the election and remains alive, and it was the winner of the treasurer election that died yesterday. Quinn wouldn’t be able to name the treasurer-elect’s replacement in December, since the office of the treasurer for the term commencing on January 12, 2015 *is not vacant yet*. Not until January 12 could that vacancy be filled.
The fact that Topinka won reelection in November and died yesterday should not change our analysis: the vacancy in the office for the term that commences on January 12, 2015 will not have occurred until January 12, 2015 rolls around.
And how about this: If Topinka’s reelection victory had been very narrow and the Democrat was contesting it, and recounts and lawsuits were going on, no one would dream of suggesting that the replacement that Quinn named for Topinka this week was entitled to remain in office past January 12, because *the vacancy would only be for the term that ends on January 12*. Well, until her death, Topinka was serving a term as treasurer that ends on January 12, 2015, and was merely the treasurer-elect for the term that won’t commence until January 12, 2015. If tomorrow the state election authority discovered a tabulation error proving that the Democrat actually defeated Topinka, then the Democrat would be certified as the winner and he’d be sworn in on January 12, and there would be no vacancy for the office of treasurer for the term commencing on January 12. There is a possibility, however slight, that by the time that January 12 rolls around Topinka wouldn’t be the treasurer-elect, and thus the vacancy in the office for such term cannot “occur” earlier than January 12.
So, in my humble opinion, the Republican Party of Illinois should fight any attempt by Quinn to name a replacement to a term that does not expire on January 12, 2015, and fight for Rauner’s right to name Topinka’s replacement for January 12. Rauner should fight this not only in the courts, but in the media, and offer to hold the special election in November 2015, thus permitting each party to have a primary a few months before and for the people to elect a state treasurer that would serve for 3 years and 2 months of the 4-year term. (Rauner should not, however, brag to the media that a November 2015 general election would have a turnout that would be a lot more favorable to Illinois Republicans than would a November 2016 general election.) And Rauner needs to say these things *now*, not after the Democrats already have acted and courts are less likely to get involved.
Technically, there’s a problem with that. Quinn would be appointing someone to serve for 4 years and 1 month, longer than the term itself. I don’t see how this doesn’t get litigated. I could see Quinn appointing someone to serve for the duration of the CURRENT term, which ends in January, and after that point, Rauner would then appoint the replacement for the next term (with a special election set for 2016).