The Associated Press is quoting defense counsel for embattled Illinois Gov. Rod Blagojevich as saying that the governor will not appoint anyone to the U.S. Senate seat left vacant by President-elect Barack Obama. The governor’s spokesman neither confirmed nor denied that was the governor’s present intention. And the idea of taking the appointment from the governor and instead punting to a special election seems dead, since the Illinois Senate cancelled a vote on the idea and then adjourned.

The status for now is that the governor will not make an appointment, he has not yet been impeached, and there is no clear path to passing legislation for a special election. So how does Illinois get a new U.S. Senator by January?

Blago does the little side-step, temporarily.

The Illinois Constitution contains a mechanism to permit Blagojevich to temporarily step aside, permit the Lieutenant Governor to make the appointment, and then resume his office. “Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.” Ill. Const. art. V, § 6(c).

This procedure has apparently never been used. See Calvin Bellamy, Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool, 9 B.U. Pub. Int. L.J. 373, 387, 396-397 (2000). But that doesn’t mean it couldn’t be tried, especially under these circumstances where his pre-appointment actions are alleged to be criminal. Obama has already resigned, and Illinois currently only has one vote in the U.S. Senate. Use of this constitutional “side-step” provision would permit the vacancy to be filled now, while removing the appearance of any impropriety in the appointment process. And since Illinois Lieut. Gov. Pat Quinn and Blagojevich don’t exactly see eye-to-eye now (if they ever did), it seems that Quinn’s appointment would not be seen as delivering on any promises allegedly extracted by Blagojevich from prospective candidates.

There is a third way to resolve this crisis, if the principal figure decides he wants to. Time will tell.