Rahm Emanuels' residency in Chicago: The courts should butt out.

The law, lawyers, and the court.
Jan. 24 2011 6:20 PM

Let Rahm Run!

The Illinois courts should let the voters decide whether he'll be Chicago's next mayor.

Update, Jan. 25, 2011: The Illinois Supreme Court has ordered Rahm Emanuel's name back on the ballot until it hears the case.

Rahm Emanuel. Click image to expand.
An Illinois court ruled that Rahm Emanuel is not eligible to run for mayor

In a judicial shocker, an Illinois appellate court, by a 2-1 vote, has kicked former Obama chief of staff Rahm Emanuel off the ballot in the race to become Chicago's next mayor. What's worse for Emanuel, as the dissenting judge points out, is that the majority booted him with less than one month before the election, just as absentee ballots are to be mailed to voters. And it refused to certify the matter to the Illinois Supreme Court, which then would have heard the case in the speediest manner. If this appellate court decision is allowed to stand, the biggest losers will be the people of Chicago, who so far support Emanuel's mayoral bid strongly.

Illinois, like many states, requires anyone running for a municipal office to be a resident of the municipality.  This sensible rule ensures that elected officials understand the interests and desires of their constituents. Emanuel long lived in Chicago and was a congressman representing part of the city for many years before he became President Obama's chief of staff. At that point he moved his family to Washington, D.C., and rented out his house. But he kept family heirlooms and other items locked in the Chicago basement, indicating a plan to return. It was well known that Emanuel hoped to come back and run for mayor whenever Mayor Richard M. Daley decided to step down from that office.

When Daley announced his retirement and Emanuel filed to run in the race, his opponents challenged his residency—and lost before the elections board, which found that Emanuel had intended to return to Chicago after his D.C. stint for the president. A trial court affirmed the board. Now this intermediate appellate court says that's wrong. Because Emanuel did not have a regular physical presence in Chicago in the year before the election, he is ineligible to run.

The appellate court had to jump through a lot of hoops to reach this conclusion. First, the factual findings of an election board ordinarily are not reversed unless the board has made a "clearly erroneous" decision. The appellate court conceded that the election board might have been correct that Emanuel intended to return to Chicago, but said that the board wrongly interpreted what it means to "reside" in the municipality: Emanuel had to have a regular physical presence in Chicago rather than merely an intent to return. That seems an overly stingy reading of a statute, if the purpose of a residency requirement is to make sure that candidates have had experience living in the city they want to lead.

A second hurdle for the appellate court: Illinois law is clear that someone out of the state with an intention to return can still vote in state and local elections. On this point, the appellate court said that Emanuel was still enough of a resident that he would remain eligible to be a voter in Chicago, but not enough to be a candidate. But if Emanuel remained resident enough to vote, why shouldn't he also be able to run for office? Third, according to the dissent, earlier Illinois cases established that Emanuel was eligible to run, by setting a rule that once someone is a resident, he does not lose his residency by leaving the state for a while. And yet here, the appellate court tried to distinguish Emanuel's case from the earlier ones—which led the dissent to snort that the majority was basing its decision on "whim," not law.

Monday's decision is wrong on many levels. Whether Emanuel's move to D.C. for a year should affect his mayoral chances is a question for the voters, not the courts, to decide. Emanuel's residency is no secret—it has been a defining campaign issue. If Chicago voters don't want to vote for Emanuel because they think he's a carpetbagger (even though this strains credulity given his longstanding Chicago ties), they can reject him at the ballot box. Now, in a nonpartisan election, they'll have to choose among a long list of candidates, none of whom has polled as strongly as Emanuel. Finally, should a politician really face a penalty like this for serving the president? Is it really true that no good deed goes unpunished?

The appellate court's overly technical reading of Illinois law risks denying Chicago voters their first-choice candidate for mayor. For no good reason, the court has thrust itself into the political thicket. If there's time, the Illinois Supreme Court should get the judiciary out of the fray and leave the question of who should be Chicago's mayor to the voters.

Like Slate on Facebook. Follow us on Twitter.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and author of The Voting Wars.