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Emanuel’s Ballot Access

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Broken History

In case you haven’t heard, last October Chicago’s Mayor-For-Life, Richard M. Daley suddenly announced he wasn’t running for re-election. Within a week, Rahm Eamanuel quit his job as Chief of Staff for Obama, and announced his candidacy for mayor.

He’s having some difficulties:

CHICAGO — With only a month to go until Election Day, more than $10 million in campaign money and an overwhelming lead in the polls, Rahm Emanuel, the former White House chief of staff, was disqualified on Monday from appearing on this city’s ballot for mayor.  A panel of Illinois Appellate Court justices, in a 2-1 ruling, found that Mr. Emanuel failed to meet a state code stipulating that candidates for mayor reside in the city they hope to lead for at least a full year before an election.

Mr. Emanuel maintains that his time in Washington, which ended in October, was always meant to be temporary and ought not affect his legal status as a resident of Chicago. He filed a motion with the Illinois Supreme Court late Monday to stay the appellate court decision and expedite an appeal.

(click to continue reading Rahm Emanuel Tossed Off Chicago Mayor Ballot – NYTimes.com.)

Gapers Block’s Ramsin Canon has written an excellent overview of the Rahm Emanuel case, including this:

The decision was split 2-1. The majority opinion is seductively argued. Basically, they build upwards from the idea that the Chicago election law is conjuctive and not disjunctive—in other words, it is an “and” not an “or.” Where there is an “and” in a statute, that means that two distinct, non-redundant elements are necessary. The two elements in question here: (1) Is candidate a qualified elector? and (2) did candidate “reside” in Chicago for a year before the election?

The majority finds that he meets the first element but fails the second and, therefore, fails to qualify. The reason he fails the second, they argue, is because the legislature must have intended “reside” to mean something different from merely “have a voter-qualifying residence.” Here they draw a distinction between “constructively” residing (think of this as “residing as a matter of law”) and “actually” or “factually” residing (think of this as “residing in the common sense”). Emanuel’s attorneys anticipated this problem by arguing that he meets an exception to this requirement as he was away due to business on the behalf of the United States—typically considered a “service member” exception, i.e., you don’t want soldiers to lose their residency because of their military service. However, the majority doesn’t think this applies to candidacy but rather only to voting. Citing a case called Ballhorn, the majority holds in other words that legislators wanted candidates to actually live in a place in order to represent it:

Those [residency] requirements ensure “that those who represent the local units of government shall themselves be component parts of such units.” This intent of the legislature moved the majority to find that Emanuel failed to meet the intent of the legislators in creating these requirements. The majority is concerned, so they say, about the rules of “statutory construction” which require them to respect the legislature’s intent in writing laws. One of the basic rules of statutory construction is that courts shouldn’t assume words are superfluous or redundant, and that if something was included, it was included for a reason. If the legislature had merely wanted candidates to be qualified voters for a year prior to elections, rather than qualified voters who also resided in the district for a year, then they would not have made a distinction.

Importantly, the majority did not give a Rule 316 certification, meaning basically that they added a hurdle to Emanuel’s appealing their decision. Had they given the certification, it would have gone straight to the Supreme Court.

(click to continue reading Make Sense, Be Honest: Emanuel’s Ballot Access – Gapers Block Mechanics | Chicago.)

If you recall, Cecil Adams argued that Emanuel *should* be on the ballot, but we’ll see what the Supreme Court of IL has to say, as I’m sure the appeal is being furiously written right now.

Whether or not, Emanuel has further options is unclear…

What happens if the state Supreme Court  declines to take the case or affirms the decision of the appeals judges that he cannot be on the ballot—and that would also mean, says Tenenbaum, that Emanuel would not be eligible to be a write-in candidate—can Rahm take his case to the U.S. Supreme Court?

“The only way to get to the U.S. Supreme Court is through a petition for certiorari, and [Rahm] would have to raise a United States Constitutional issue,” Professor Tenenbaum said. “I have not seen one, although he could try and argue that if residence has one meaning for voting purposes [Rahm has consistently voted here] and another for candidacy, it denies equal protection, but that would probably be a stretch.”

(click to continue reading Northwestern Law Prof on Rahm’s Prospects Now – Felsenthal Files – January 2011.)

Looking up at the Chicago Tribune

The Chicago Tribune editorialized, in part:

With startling arrogance and audaciously twisted reasoning, two appellate judges ignored more than 100 years of legal precedent, invented a new definition of “residency” and ordered Rahm Emanuel off the Feb. 22 mayoral ballot.

With the election just four weeks away, the appellate panel voted 2-1 to reverse the decisions of the Chicago Board of Elections and a Circuit Court judge. It’s an adventurous, flawed ruling that has immediate and profound consequences. The case is headed to the Illinois Supreme Court, but the ballots are headed to the printer — without Emanuel’s name. Early voting begins Monday.

In a blistering dissent, Appellate Justice Bertina E. Lampkin accused her colleagues, Thomas E. Hoffman and Shelvin Louise Marie Hall, of “careless disregard for the law,” and harshly criticized them for refusing to ask the Supreme Court for an expedited review.

Lampkin accused the majority of ignoring case law that clearly supported Emanuel’s argument —including a significant case in which Hoffman prevailed.

“The majority’s new standard is ill-reasoned and unfair to the candidate, voters and those of us who are charged with applying the law,” Lampkin wrote. The decision “disenfranchises not just this particular candidate but every voter in Chicago who would consider voting for him.”

…Instead, the two appellate justices twisted themselves into a pretzel to come up with an argument to disqualify him. Insisting that they had “no Supreme Court directive” on which to rely and hanging their hat on an interpretation found in a case they acknowledge “lacks precedential force,” the justices decided that the phrase “resided in” has one meaning when applied to voters and another when applied to candidates.

This distinction, Lampkin notes, “is a figment of the majority’s imagination” and “a standard that the majority just conjured out of thin air.” In the process, the justices disregarded a case that has guided residency rulings for 122 years, she wrote.

“An opinion of such wide-ranging import and not based on established law but, rather, on the whims of two judges, should not be allowed to stand,” Lampkin wrote. Amen.

(click to continue reading Rahm Emanuel knocked off mayoral ballot – chicagotribune.com.)

Written by Seth Anderson

January 25th, 2011 at 9:18 am

Posted in Chicago-esque,politics

Tagged with ,

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  1. […] Illinois Supreme Court ruled 7-0 that Rahm Emanuel is to remain on the ballot. I haven’t decided who I might support in the mayoral race, but am pleased with this […]

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