              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604


                                          July 22, 2010

                                               Before

                              ILANA DIAMOND ROVNER, Circuit Judge

                              DIANE P. WOOD, Circuit Judge

                              JOHN DANIEL TINDER, Circuit Judge



No. 09-2219

GERALD A.         JUDGE     and    DAVID                Appeal from the United States District
KINDLER,                                                Court for the Northern District
                      Plaintiffs-Appellants,            of Illinois

       v.                                               No. 09 C 1231

PATRICK J. QUINN, Governor of the                       John F. Grady, Judge.
State of Illinois, and ROLAND W.
BURRIS, U.S. Senator,
                   Defendants-Appellees.



                                           ORDER

        On June 28, 2010, Defendant-Appellee Patrick J. Quinn filed a “Motion to Amend
Opinion or, in the Alternative, Petition for Rehearing En Banc, of Defendant-Appellee Patrick
J. Quinn, Governor of the State of Illinois.” As ordered by the court, Plaintiffs-Appellants filed
their response to that motion on July 7, 2010. The court construes the motion as a petition for
rehearing or rehearing en banc.

      On consideration of the petition, so understood, all of the judges on the original panel
have voted to deny rehearing, and no judge in active service has requested a vote on the
No. 09-2219                                                                                   Page 2




petition for rehearing en banc. It is therefore ORDERED that the petition for rehearing en banc
is DENIED.

        It is further ORDERED that the opinion of the court is revised as follows. On page 38, line
19, the following language is deleted:

       However Illinois conducts its election for the vacancy, the replacement senator
       presumably would present his or her credentials to the Senate and take office
       immediately, while the senator elected to begin service with the 112th Congress
       would not take office until January 3, 2011.

In its place, the following two new paragraphs are added:

               The district court has the power to order the state to take steps to bring
       its election procedures into compliance with rights guaranteed by the federal
       Constitution, even if the order requires the state to disregard provisions of state
       law that otherwise might ordinarily apply to cause delay or prevent action
       entirely. It is elementary that the Seventeenth Amendment’s requirement that
       a state governor issue a writ of election to guarantee that a vacancy in the state’s
       senate delegation is filled by an election is an aspect of the supreme law of the
       land. U.S. C ONST. art VI, cl. 2. To the extent that Illinois law makes compliance
       with a provision of the federal Constitution difficult or impossible, it is Illinois
       law that must yield. See Rice v. Cayetano, 528 U.S. 495 (2000) (holding that state-
       law rules governing elections of trustees to the Office of Hawaiian Affairs
       violated the Fifteenth Amendment); Dunn v. Blumstein, 405 U.S. 330 (1972)
       (striking down state-law durational residency requirements as unconstitutional
       under the Fourteenth Amendment); Harper v. Virginia Bd. of Elections, 383 U.S.
       663 (1966) (holding that state-law poll taxes violated the Fourteenth
       Amendment).

               However Illinois conducts its election for the vacancy, the state should
       endeavor to certify the results of that election as soon as possible, so that the
       replacement senator may present his or her credentials to the Senate and take
       office promptly. The senator elected to begin service with the 112th Congress
       will take office as the Constitution provides on January 3, 2011. U.S. C ONST.
       amend. XX, sec. 1.

In all other respects, the petition for rehearing is DENIED.
