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The Mechanics
« Third Time's the Charm: Rahm Emanuel Off the Ballot Someone Really Wants to Vote for Rahm »

Election 2011 Mon Jan 24 2011

Make Sense, Be Honest: Emanuel's Ballot Access

There's a lot of political schadenfreude going around in reaction to an Illinois Appellate Court decision to remove Rahm Emanuel from the municipal election ballot. A local objector filed suit to prevent Emanuel's candidacy, with the argument that Emanuel failed to meet the requirement that candidates for local office in Chicago both be a qualified elector (i.e., voter) and have "resided" in Chicago for a year before the election.

The latest turn in Emanuel's on-going legal troubles in getting on the ballot was a shock to many (but not all), and has naturally led to indignation at the injustice done to voters (i.e., "Let the voters decide!") and the justice of the universe ("He's buying the election! He failed to meet the letter of the law!")

I implore everyone to take a breath and consider their arguments outside of the election fight context for this one instance; in a post-Bush v Gore society, we can't afford any more "I'll cheer when it helps and screech when it hurts" approaches to legal decisions like this.

The Opinion and Dissent

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.

The dissent is raucous, and accuses the majority of "flights of fancy," of inventing law out of whole cloth, and of disenfranchising voters. The strident tone and lack of congeniality is rare for appellate court decisions. The anger is palpable in the decision, and that unfortunately detracts from some of the better arguments. In particular, the dissent says that as the majority stated that there were no precedents that clearly guided their decision making, they were creating new rules and standards, and therefore their opinion should have been prospective rather than retroactive, and should have been sent back to the Board of Election Commissioners. This could very well be the argument that the Supreme Court adopts if it overrules the Appellate Court--if the majority is creating a new rule based on a lack of precedent, how could Emanuel have possibly conformed to it? The dissent also points out that, in sticking with statutory construction, the judges should have assumed that legislators used the word "resided in" rather than "lived in" exactly because they wanted it to carry the same meaning for candidates as for voters.

One interesting thing about "residence" and "resides." Although it seems like they're two different parts of speech of the same root--if you have a residence somewhere, you reside there, noun-verb--they don't need to be. In fact, in a recent oral argument before the Supreme Court, this very issue came up. In considering whether a corporate "person" could possibly have something like "personal privacy" rights, Chief Justice Roberts said:

I tried to sit down and come up with other examples where the adjective was very different from the root noun. It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn't have much to do with craft. Squirrel, squirrely. Right? I mean, pastor--you have a pastor and pastoral. Same root, totally different.

Nevertheless, the dissent is compelling and in their response to the majority opinion, Emanuel's attorneys rely heavily on the dissent's arguments.

What About the Poor Voters!?

The Emanuel camp organized an impromptu "protest" at the Board of Elections to demand Rahm get on the ballots, which are going to print shortly, and his staffers have been pushing the idea, echoed by a silly Sun-Times editorial, that the decision has "dis-enfranchised" voters by taking away one of their options. This is ridiculous.

But before getting to why, I'd like every reporter in this city who is internalizing this to ask Emanuel and his staffers if Barack Obama disenfranchised voters when he was first elected to the state Senate by kicking off Alice Palmer based on technical mistakes on her ballot petitions. I want Rahm Emanuel himself to be asked that question and to answer it. The intellectual dishonesty of political campaigns is to be expected--they're paid to fight their hardest for their guy--but that doesn't mean we should just pretend it isn't intellectual dishonesty. When Obama was criticized for his treatment of Palmer, my sense is that once-Obama communications chief and current Emanuel communications chief Ben LaBolt probably didn't buy it.

The judges are not disenfranchising voters. They are applying the law as they understand it. Maybe the law disenfranchises voters, but they weren't asked to invalidate the law. Emanuel's campaign didn't argue that the law was unconstitutional. They were asked to rule on whether Emanuel qualified as a candidate. That's why we have these laws.

Who wrote these laws? They were written by legislators elected by voters. How is it not disenfranchising voters to have judges ignore the laws they wrote? Also, wouldn't it be disenfranchising voters to allow unqualified candidates to access the ballots? How are voters' interests served in that way?

None of this is to say that the majority opinion was correctly decided; that's besides the point. But I hear very few people offering counter-arguments to the majority. What I hear and read are slogans about "disenfranchisement" and "the right to choose." The question is: do we agree with the restrictions as they exist, and the tests to determine whether those restrictions have been met? If we do--and I think in terms of residency, they are reasonable--then the debate should be about whether the majority correctly read the legislative intent and whether their opinion constitutes a new rule that Emanuel could not fairly have been expected to meet (as it didn't exist).

Also, these editorial boards have some nerve talking about judges disenfranchising voters. How much coverage are they giving to Patricia Watkins or Dock Walls? Are they invited to their endorsement sessions? For all practical purposes, the media makes the most important decisions on behalf of voters: who is worth their time to consider. At least someone elected these judges.

Hey, Thems the Rules!

The rule is that to be qualified to run for mayor, you need to be a qualified elector and have resided in Chicago for a year prior to the election. Okay. Start there. Is that fair?

If yes, then the next question is, "What do you think the word 'reside' means when it comes to candidates?"

If you think, "It means that they can vote there," then, yes, Emanuel is qualified.

If you think, "It means that they're actually part of the community; that they actually live here," then, no, Emanuel is not qualified.

Those jeering at Emanuel risk something: wider ballot access. The majority does seem to be adding a twist to the issue by adding--or clarifying--this factual residence rule, and it could be something that is used in the future to rule a candidate out unfairly. Say you want to run for alderman, but for a few months last year, you were in Texas working on a contract for your employer. Or you went to stay with sick family in Massachusetts and had your mail forwarded. Or you moved in with your boyfriend in Edgewater briefly but broke it off. Should these things disqualify you? They potentially could. There is a reading of this opinion that could lead to more restrictive rules for ballot access.

I don't think Rahm Emanuel cares about wider ballot access in principle; he cares about it when it affects Rahm Emanuel. Be that as it may, progressives, who typically agitate for wider ballot access are looking at a situation where a court may retroactively apply a rule that potentially didn't exist to disqualify a candidate, and on grounds that add another wrinkle to the entire ballot access equation. Do they want to be on record cheering for that?

In Summation

Take it easy.

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Lee / January 24, 2011 10:45 PM

This is a pretty reasonable, well-balanced look at both sides of the story. The only part I'd take issue with is your argument that the voters don't have a right to claim they're being disenfranchised. You're reasoning assumes that the judges ruled correctly to remove Rahm, in accordance with the law. If you don't believe they ruled in line with the law, then Rahm is being removed illegally and yes, the voters are being robbed. As far as the rest of the legal process? Ald. Burke's wife sits on the IL Supreme Court, and he's backing Chico. You're also missing the fact that this legal challenge is unique in being shrouded in secrecy. Who is funding this Odelson guy anyway? And why are they hiding? Odelson says it's none of the public's business. I'd beg to differ if Odelson argues a case before a Supreme Court justice whose husband is funding the case. Those are the reasons I feel disenfranchised and why I think this would be a significant blow to democracy in Chicago if Rahm is ultimately found ineligible.

Ramsin / January 24, 2011 10:50 PM

Lee-- This is very important: I don't assume the majority decided "rightly"; but I do think that their decision falls within reasonable bounds. There're very few "correct" answers when it comes to the law. I actually think if the SC hears the case there's a good chance they'll reverse the appellate court.

But in order for the court to be "disenfranchising voters" they'd need to be doing something intentional, and unreasonable. In other words, they'd have to be completely flouting the intent of the law so recklessly that they were unconcerned with the outcome. I don't think that's what happened here. Their argument is cogent and reasonable and seems to be built on a fair reading of rules put in place by democratically elected representatives--I just don't think it's fair to accuse them of doing something that in a democracy is extremely heinous.

Mike / January 25, 2011 2:14 AM

Can you offer a link to the actual wording of the laws in dispute?

Chris / January 25, 2011 2:17 AM

I know that the decision can be found online. Mike, I'm sure everything is in some footnotes in the decision and the dissent.

Oscar / January 25, 2011 9:40 AM

I think the Tribune hits the nail on the head with this one. It reeks of judicial arrogance. Not only should they have certified to the IL Supreme Court, they should have refrained from deciding the issue. They themselves state the following:

"Consequently, we have neither a current supreme court directive, nor persuasive appellate court reasoning, compelling us to treat candidate residency requirements in the same manner as voter residency requirements, and we have some indications from the supreme court that the requirements might diverge. We must, therefore, ourselves interpret the Municipal Code’s use of the phrase 'resided in' to determine if it should be construed as being synonymous with, or different from, the Election Code’s residency requirements for voters."

I don't understand how the appellate court can say they have no directive from the supreme court and still not certify. If there is ever a case to certify, this would be it. If a decision is going to affect millions of voters and you have no directive, it should be certified.

To me, the decision comes off as an attempt to throw a monkey wrench in the election by preventing Emanuel's name from appearing on the ballot. Why else would they order "that the candidate’s name be excluded (or, if necessary, removed) from the ballot for Chicago’s February 22, 2011, mayoral election." The appellate court shouldn't have ordered anything with regards to the ballot; they should have simply remanded to the trial court with direction to follow their new interpretation of the law. Appellate courts should interpret the law and trial courts should apply it. This court's decision to change that procedure looks rather suspicious to me.

Ramsin / January 25, 2011 10:04 AM


I generally agree with you, particularly on the certification question. The dissent's argument is strongest in that regard. That's why I think the ILSC will ultimately ensure that Emanuel stays on the ballot.

I wonder though why these judges would be trying to throw a monkey wrench into the election, particularly if they know their reasoning is severely flawed? Huge risk, little reward.

dexter / January 25, 2011 10:22 AM

Excellent analysis. My ulitmate problem with the majority's analysis here, though, is the fact that it creates an ambiguous standard that is almost impossible to apply in a uniform way. Courts usually strive to avoid this type of result when interpreting the legislature's intent.

As the dissent notes, how many days may you be away from your residence before you are considered not eligible to be a candidate under the residency restriction? Rahn has spent close to 5 months here during the relevant residency period (October 2010 to February 22, 2011)--over a third of the year. This is likely more time than any courrently serving member of the U.S. Congress spends "living" in Illinois. So, are we saying any congressman or senator currently serving the citizens of Illinois could not resign and run for state office? That is a completely absurd result that is entirely possible under the majority's opinion.

Pete / January 25, 2011 1:30 PM

Ramsin, the Tribune points out today that Judges Hoffman and Hall were both originally "slated" by Ed Burke's party committee. What does slating typically entail? Just making someone the nominee? Or is there financial backing as well?,0,3891974.story

randolf hurts / January 25, 2011 10:38 PM

If you think, "It means that they're actually part of the community; that they actually live here," then, no, Emanuel is not qualified.

I think this is far too brief a conclusion in this age of interconnectivity. But even beyond that I am confounded that the argument as a whole has not touched the idea of working away from 'home'. This to me is the key point. Can you work away from home, but still 'reside' at home?

I would not cast a vote for R.E. but I think he is just as entitled to buy the votes of Chicago as any other candidate.

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