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

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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.