Emanuel Ruling Creates A Legal 'Mess,' Possibility of 1st Amendment Suits: Expert

WASHINGTON -- An Illinois appellate court decision to rule that Rahm Emanuel does not qualify as a Chicago resident and should be left off the mayoral ballot has created, what one respected local legal observer called, "a mess" even within a city known for political drama.

At an impromptu press conference on Monday afternoon, Emanuel announced that he would file a stay to keep his name on the ballot while the issue was sorted out. At the same time, Langdon Neal, chairman of the Board of Election Commissioners for the City of Chicago, declared that the commission was "going to press [on] with one less candidate for mayor."

The potential for legal problems is immense. As of now, no ballots have been printed or mailed to Chicagoans with Emanuel's name on them, Emanuel's aide Ben LaBolt confirmed. But ballots will have to be printed before the early voting begins on Jan. 31. The state Supreme Court will, in all likelihood, expedite its hearings (should it take up an appeal of Monday's ruling). But there remains the possibility that the debate over Emanuel's residential status won't be resolved by the time ballots are printed.

All of this could be resolved early enough that no voter casts a ballot that erroneously or illegally includes or excludes Emanuel's name. But the deadline is tight. And should voters end up filling out faulty ballots, the Chicago board of elections will have a whole new set of legal issues with which to deal.

"A voter could bring an independent federal court complaint saying that their first amendment right has been violated by this," said Michael Dorf, an oft-turned to legal expert on Chicago election laws.

Equally perplexing is what the board of elections will do if, hypothetically, a ruling comes down from the state Supreme Court that makes the early voting ballots null and void.

"I don't know if they will do a re-vote but certainly they will have to decide whether to discard the votes or divide them proportionately among other candidates," said Dorf. "It's a mess ... But now that the Bears have lost this is the only sport in town."

There have been high-pitched legal dramas over ballots before. After Paul Wellstone's death just days before the 2002 election, the state of Minnesota resisted sending out any new absentee ballots to voters who had already submitted their votes. The Minnesota Supreme Court intervened, ruling that the state had to send out new ballots on request and count the most recently returned ballots.

Comments

[lvogt]

12:04 PM on 01/25/2011

The ruling of the Court majority seems to be saying that the part of the statute where you cannot lose your residency by serving the nation is meaningless. The dissent made the better argument.

[Maezeppa]

01:43 PM on 01/25/2011

It won't stand.

[dfranz]

10:27 AM on 01/25/2011

This is nutty and smells of partisan activism. 1st of all he was a Representative for the state of Illinois, 2nd he left that to serve the President of the United States. He never relinquished his home and he voted as an Illinois citizen. I guess the appellate court thinks serving the President means you lose your citizenship.

[Passerineblue]

09:46 AM on 01/25/2011

Note: I was admitted to the Illinois bar in 1978. I read the opinion and have heard good things about the author, a well respected jurist. As you read the comments please keep the following in mind:

1. The decision is based on a highly technical reading of an Illinois statute. There are a lot of people commenting on residence, domicile, etc., who do not realize that residence and domicile are legal terms that have different meanings depending on the context in which they are used. Rahm maintained sufficient connections to Chicago to retain his right to vote in Illinois elections, but he was not a "resident" (dictionary definition) of Chicago for the purposes of candidacy for mayor of Chicago because he didn't actually LIVE in Chicago for the year prior to the election. The court said that the legislation was intended to insure that candidates physically live in the area. He didn't. He resided in Washington, DC.

2.This isn't a case of politics. Anyone who knows Chicago knows that there is NO WAY a republican could ever be elected mayor, so what incentive would a republican judge have to oust Rahm?

3. The author of the 42 page opinion is a well-respected jurist. As an appellate judge, he makes a pittance compared to what he could make in private practice. He is a public servant. Please don't insult him by assuming that he has any ulterior motives in rendering his well-reasoned opinion.

[worldtrav]

10:36 AM on 01/25/2011

By this standard of strictness, the Second Amendment only permits people to wear short sleeved shirts.

[Maezeppa]

01:45 PM on 01/25/2011

And he was stayed.   As I argued yesterday, the only legally sound option is to keep Rahm on the ballot at this point.      
 
http://firstread.msnbc.msn.com/_news/2011/01/25/5915616-ill-court-issues-stay-rahm-back-on-the-ballot

[ghee99]

05:45 AM on 01/25/2011

if the rule is you have to live in chicago or maintain a "residence" there (not just own property there) in the year before the election

and as rahm didnt

why is thisIdiot wasting tax dollars, and valable court time fighting this?

what a spoiled, entitledBrat

why does he think he gets to play by a different set of rues than everyone else?

just one more reason the ballerina makes me sick

[Maezeppa]

09:07 AM on 01/25/2011

The US Constitution prohibits a President and Veep from residing in the same state.  Show me where you posted all your outrage when Texan Dick Cheney suddenly became a Wyoming resident when he did not reside but only owned property there?  Show me.  Show me or admit to your hypocrisy. 

[ghee99]

02:02 PM on 01/25/2011

well, i coudn't stand bush and the big spending neo-con agenda

so, why you mention them to me, i'm not sure

although, i didn't even know "The US Constitution prohibits a President and Veep from residing in the same state."
...but i'll take your word on it

but why you are bringing up things some candidate that neither of us voter for did 11 years ago, to justify sneakyTricks by the ballerina is beyond me

[Passerineblue]

08:01 AM on 01/26/2011

Residency requirements and what constitutes "residency" varies from state to state. Papa Bush wasn't in my mind a resident of Texas, he rented a hotel room when he was President. That was his Texas "residence." We live in a federalist system and state law determines who is and who is not a resident or even whether there IS a residency requirement.

As for your point on Cheney, I agree, but you are comparing apples (TX state residency req.) to oranges (Ill state residency requirements) if you are trying to use Cheney's situation to support Rahm's right to be on the ballot in Illinois.

[pdxist]

02:32 AM on 01/25/2011

The law seems pretty clearly on Rahm's side:

"No elector or spouse shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State."

http://www­.ilga.gov/­legislatio­n/ilcs/ilc­s4.asp?Doc­Name=00100­0050HArt.+­3&ActID=17­0&ChapterI­D=3&SeqSta­rt=1020000­0&SeqEnd=1­1000000

[Passerineblue]

08:04 AM on 01/26/2011

This applies to Rahm's right to vote, not his right to run for office. The word "elector" means voter, not candidate for office. No one is questioning the fact that Rahm is an "elector." To run for office in Ill. you have to be an "elector" AND a resident.

[mjb5406]

02:09 AM on 01/25/2011

While the appeals court interpreted the law strictly... I still would love an investigation into why these 12 people coincidentally hired Burt Odelson to challenge Emanuel's candidacy. It's smelled from day 1... and, quite frankly, since she is the one that has complained most vociferously against Emanuel, it would not surprise me if Carol Moseley-Braun's campqign orchestrated this. I don't mean this in a racially-charged manner... but, if you look at the news regarding her. she is the only one who seems to have had a problem with Emanuel. Chico, Del Valle, even "Doc" Wall haven't raised such a fuss.

[CorpTreason]

12:39 AM on 01/25/2011

I think that as long as he owned the house there and was paying property taxes on it, even if he spent a couple years working elsewhere he does not give up his residency in Chicago unless he established residency in the new location. I kept my out of state driver's license and home for quite a while before finally committing to CA, paying taxes in my old state because I was a resident there. Only when I registered to vote in CA, got a CA driver's license, and starting paying CA state taxes did I become a CA resident. Where you lay your head means nothing. What if he was a traveling businessman like that character in Up in the Air? Wherever he fulfills these legal requirements of state residency, I say that is where he resides. This one government body may disagree but I can easily see how the next may see it the same way I do. So good for him for fighting for his right to run for office somewhere, and in the place that has been his only permanent home.

[sarabono]

11:43 PM on 01/24/2011

Now this is what I call Chicago Hardball Politics !

[Ph0en1x]

11:16 PM on 01/24/2011

I was never the biggest fan of Rahm, but the law clearly states that he is a resident of Chicago because he was away on service to the US. Pretty cut and dry. I wonder why the court didn't see it that way?

[mjb5406]

02:04 AM on 01/25/2011

The law only includes military service; service to the POTUS does not count.

[pdxist]

02:31 AM on 01/25/2011

"No elector or spouse shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State."

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=001000050HArt.+3&ActID=170&ChapterID=3&SeqStart=10200000&SeqEnd=11000000

[worldtrav]

10:25 AM on 01/25/2011

funny it doesn't say military service - and yet you alone know what it means.

[IndepBob]

08:00 AM on 01/25/2011

You're quoting the wrong law. We're not talking about the state voting law, we're talking about Chicago's Municipal Code saying a candidate for mayor must be "a qualified elector of the municipali­ty and [must have] resided in the municipali­ty at least one year next preceding the election."

[Maezeppa]

09:13 AM on 01/25/2011

Sorry, but you can't read just the words you like.   You have to read all the words.
 
"No elector or spouse shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State."
 
Besides, judges look at intent.   When a law clearly written to prohibit carpetbagging is applied to exclude a lifelong resident is weighted against a law that expressly maintains residency for electoral purposes, the decision is a no-brainer.

http://www­­.ilga.gov­/­legislat­io­n/ilcs/­ilc­s4.asp­?Doc­Name=­00100­0050­HArt.+­3&A­ctID=17­0&­ChapterI­D­=3&SeqSta­­rt=1020000­­0&SeqEnd=­1­1000000

[Scott MacKenzie]

11:11 PM on 01/24/2011

I can assure almost every conservative voting in Chicago would have voted for Emanuel in the de-facto election ( the primary ) over Chico or Braun. Conservatives know there is no shot of a Republican being elected in a city where there more African American and all most as many Hispanics as there are Whites. Its amusing to reading post here with conservative celebrating this decision and the left is blaming conservatives for knocking him off, I can assure you that not happpend.

[MiddleMolly]

12:25 AM on 01/25/2011

Actually, the 2010 Census appears to show that the biggest ethnic group in Chicago are whites, for the first time since the 80's. The black population has declined, and the Hispanic and Asian population in Chicago have increased.

One thing that there isn't in Chicago are many conservatives.

The best candidate for mayor was/is Emanuel, hands down. He's the only one who has the administrative experience and the connections to manage this city. Chicago residents want their garbage picked up, their streets plowed, and potholes filled. Most of my neighbors and friends who live in the city were basically happy with Daley and we want somebody who will take care of city business. I was very relieved when Emanuel announced that he was running and I hope this ruling is overturned pronto.

Chicago needs Emanuel. None of these other candidates have the managerial background to run this city.

[Scott MacKenzie]

01:37 AM on 01/25/2011

I just saw a demo break down in Sundays Chicago Tribune (sec A pg33.8 12), it said Blacks are 33.8, Whites are 32.5, Hispanics 27.4, Asian 4.9 and other 1.4. Which made me wonder if anyone bothered to count the Indian's ? Or are they counted as Asian's ?

[lvogt]

11:09 PM on 01/24/2011

I cannot find the actual city law but... Illinois State Law states definitively:
(10 ILCS 5/3‑2) (from Ch. 46, par. 3‑2)
Sec. 3‑2. (a) A permanent abode is necessary to constitute a residence within the meaning of Section 3‑1. No elector or spouse shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State. Nothing in this Section shall be construed to prevent homeless individuals from registering to vote under the provisions of this Act.

So despite the logical argument about the house he lived in, he was clearly working "on the business of the United States."

I change my mind. He should be on the ballot.

[FearlessFreep]

11:14 PM on 01/24/2011

Was his job as White House Chief of Staff "the business of the United States" or the business of the President?

[MiddleMolly]

12:29 AM on 01/25/2011

Gimme a break. Anybody serving in Washington for the President or a member of Congress is serving the "business of the United States". The son of one of my friends recently moved to Washington D.C. to work for a member of Congress. He certainly didn't have money to maintain two residences, but he clearly is still a "resident" of his home state.

[lkim65]

11:17 PM on 01/24/2011

Ummm...seems to me you are quoting the statute that applies to the residency requirements for voting not the requirements for running for mayor.

[lvogt]

12:47 AM on 01/25/2011

A fair point but it is a state law that would seem to indicate that one either is or isn't a resident. Anyone know where the actual statute that applies can be located? It's amazing with all this alleged reporting it's not posted somewhere obvious.

[IndepBob]

07:52 AM on 01/25/2011

Now you're injecting accuracy and facts into the debate. Shame on you.

[wizzardly]

10:49 PM on 01/24/2011

Rahm is so power hungry...the rules don't apply to him.

[sf omega man]

10:46 PM on 01/24/2011

Rules are for suckers. They don't apply to Rahm.

[teacherworkday]

10:09 PM on 01/24/2011

Why not let the people vote?

[lvogt]

10:49 PM on 01/24/2011

Sure. Why not? Even if they're not residents.

[Ron Battista II]

02:45 AM on 01/25/2011

Instant fan for coming out. Welcome to Wally World!

[PORK RIND]

09:27 PM on 01/24/2011

Congratulations to the people of Chicago for being saved from the mayor who would make Blago look like a vacation in Disneyland. It was a close call.

[Maezeppa]

09:43 PM on 01/24/2011

Your opinion about Rahm Emmanuel is irrelevant to the legal question of whether a citizen is  a lawful resident and entitled to run for public office.  That makes you not a real American.  Shame on you.

[PORK RIND]

10:16 PM on 01/24/2011

You are absolutely correct. I could not give a flying Rahm about the legalese involved. All I care is that people of Chicago were rescued (at least for now) from four years of cronyism, corruption, backroom deals, backstabbing and political foul-mouthing. Glory Hallelujah, praised be the Judicial System of the United States (well, almost, anyway).

[FearlessFreep]

11:16 PM on 01/24/2011

Can "real Americans" have differences of opinion?