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Chicago After Daley Thu Dec 23 2010

The Dude Resides -- or Does He? Why Rahm's Residency Matters

As I write this, the Chicago Board of Election Commissioners has just denied the challenge to the mayoral candidacy of Rahm Emanuel. Late last night, about a day-and-a-half later than expected, hearing officer Joseph Morris recommended that Emanuel be allowed to stay on the ballot. Morris's report is posted at Early and Often and possibly elsewhere by now.

Morris's recommendation, with which the Board agreed, focuses on whether or not Emanuel "abandoned" his residence, following the logic of a post-Civil War Illinois Supreme Court case in which a judge was allowed to keep his position after a couple years in the army. The analogy is not particularly compelling, because the statute at issue today is an Illinois Municipal Code re-write that was enacted more than a century after the Civil War. Sure, if you focus on "resident" as a noun, or "residence" as a status, Emanuel wins -- because those terms are legalisms determined largely by declaration and intent. Emanuel should be able to vote in Chicago -- and has.

The issue is that in addition to saying that a candidate has to be an "elector" of the city, which already includes the requirement of "residence," the statute, Section 3.1-10-5 of the Illinois Municipal Code, also has the requirement that the candidate have "resided," as a verb. The question is whether owning real estate out of which you've completely moved your family, and which you're only using for income and a storage unit -- which is good enough to vote -- still constitutes "residing" in a city, and simply incorporates the legalistic "elector" residency definition as its own, or whether using two separate phrases implies something more.

Normally, in interpreting statues, a court assumes that language wasn't meant to be surplus or nonsense but was put there for a reason (that may give legislatures too much credit, but it's the rule). Since the "elector" requirement already incorporates "residence," saying you have to also "reside" suggests some affirmative action, more than legal technicality, is also necessary. That's the wrinkle that makes the strongest legal appeal. It's also a salient political point.

Why does it matter? Why should anyone care? The Tribune says "he's a Chicagoan" and that ends the discussion. But one gets the impression that the Trib, like many, would applaud Silvio Berlusconi being a candidate if they thought he could get the CTA to run on time, or Chicago's fiscal woes straightened out.

Fact of the matter is, not every person who has real estate in a city gets to run for office. Not even every voter. Let alone every person who might be qualified to run the city. The law, on its face, seems to want candidates to have actually lived there. Recently.

Is it an unreasonable requirement if a state says that, in order to be a municipality's chief exec, a candidate should have spent the last year living as one with the people of that city: chafing under its traffic congestion, suffering the injustice of its taxes while millions are paid out for insider deals or lawsuits against the city, dodging the bullets on its streets and the dog poop in its parks?

A principal problem with government these days is the disconnect, the gulf between those who govern and those who are governed. The chief fail of top-down management is that too many at the top are clueless about who and what policy soaks when it finally trickles down to the bottom. So, yeah, where you live matters. So does how you live. One of the reasons the Current Occupant has survived scandal and deficits is that, in appearance and speech, many Chicagoans accept him as one of their own.

Will Emanuel get such a pass? I was not advising any candidate at the objection hearing. But if I was, I would have asked, maybe, only one question: "Mr. Emanuel, what does it cost to feed a meter these days in Chicago?" Because pretty much anyone who really resides here knows that.

It's unfortunate that the legalistic issue of "residence" is emerging as the biggest consumption of ink and bandwidth to date, rather than, say, schools or pensions, transit or debt. But whether or not Rahm Emanuel survives the legal test, the question of where he has lived remain legit. Where are your head and your heart? How well do you really understand how most of your future constituents do live? That is a perfectly legitimate challenge, that every candidate, in some form, and in more than one forum, should have to answer.

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denny / December 23, 2010 2:15 PM

"Mr. Emanuel, what does it cost to feed a meter these days in Chicago?"

They tried to do the same thing to him in his first run for Congress. "How much does a box of diapers cost in Chicago?" Weird question, but he had lived in Chicago quite awhile and he has three kids. He not only knew the answer, but was able to give an exact price for a store near his home. Don't assume he doesn't know how much the meters run.

Jed / December 24, 2010 10:24 AM

I'm born and raised in Chicago and would have NO idea how to answer the parking meter question. Not everyone subscribes to car culture; one of the wonderful things about the city is that it has a robust enough transit system that living without a car is a practical option.

As far as the question as to whether Mr Emanuel is an appropropriate candidate for mayor, it's more complicated, but I'd offer this observation. Long before Daley announced his retirement, back when he held down some sort of job in the executive branch of the federal government: if you'd asked anyone in Chicago or anyone in DC from where Rahm Emanuel hailed, what do you think they'd have answered?

I know my answer: Chicago.

Dennis Fritz / December 25, 2010 11:02 AM

Were Rahm Emanuel a Republican or a third-party candidate, or even a Democrat without so much clout, he'd have been knocked off the ballot immediately. The fact he wasn't shows just how corrupt the whole process is.

WAJ / December 26, 2010 9:53 AM

JED - Jeff Smith makes a very good point about the nature of the statute, and if we back up your response and ask it a little differently:

If you asked anyone in Chicago or in DC, before Daley announced his retirement, where Emmanuel was living, they would have answered DC.

Now that we've let the lawyers answer the question, we now have a legal precedent for home is where the heart is, or at the very least, where you leave boxes, or where you intended to have your heart, etc...

Jeff Smith / December 26, 2010 11:38 AM

I'll answer all 4 comments in one.
To Denny: I assume nothing about Rahm's knowledge; he's a smart guy, plus I was being somewhat facetious. As a lawyer, in reality I'd only ask the question if I already knew the answer. My main point is not about Rahm but about policy, and remains the same: an "actually live here" requirement is not unreasonable.
To JED (nice flickr site, by the way!): yes you can live w/o a car in Chicago. But you can't run for office purely on mass transit unless you're running a Howard Taft or ad-only campaign. Since Rahm cited his own drivers' license and plates, meters are fair game.
To Dennis and WAJ: I actually don't think the system's corrupt, altho if it were Queen Sister rather than Rahm one wonders if you'd get the same result. Mainly I think it's just one more messed-up, ambiguous statute, that should be fixed by substituting the more real-world "lived" for the legal-technical "resided" and, if necessary, adding a definition, if that's what the law intended.
Thank you to one and all for contributing to the conversation.

Dennis Fritz / December 26, 2010 7:02 PM

I've also read the statute, I don't think it's ambiguous at all.

As you pointed out, there is a difference between having legal residence in a place and actually having resided there. The statute clearly requires physical residence. It even specifices the one circumstanstance in which that requirement might be waived--i.e military service, either own or own's spouse's.

Emanuel's attempt to conflate legal residency with literal, physical residence is just snake oil peddling.

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