The 2-1 decision is Maksym v. Board of Election Commissioners, decided today; thanks to How Appealing for the pointer. Emanuel can of course ask the Illinois Supreme Court to hear the case. An excerpt:
The issues in this appeal distill essentially to two: whether the candidate meets the Municipal Code’s requirement that he have “resided in the municipality at least one year next preceding the election” (65 ILCS 5/3.1-10-5(a) (West 2008)), and, if not, whether he is exempt from that requirement under the Election Code provision stating that “no elector *** shall be deemed to have lost his or her residence *** by reason of his or her absence on business of the United States” (10 ILCS 5/3-2 (West 2008))….[UPDATE: Added the following paragraphs to the block quote:]
[W]e conclude that, under subsection 3.1-10-5(a) of the Municipal Code, a candidate must meet not only the Election Code’s voter residency standard [which can be satisfied even if people are absent from the jurisdiction for an extended time but intend to return -EV], but also must have actually resided within the municipality for one year prior to the election, a qualification that the candidate unquestionably does not satisfy. Because the candidate does not satisfy that standard, he may be eligible for inclusion on the ballot only if he is somehow exempt from the Municipal Code’s “reside in” requirement.
To that end, the candidate argues that, regardless of whether he meets the candidate eligibility requirements of subsection 3.1-10-5(a) of the Municipal Code, he nonetheless may be qualified as a candidate by virtue of section 3-2 of the Election Code, which provides as follows:
“(a) A permanent abode is necessary to constitute a residence within the meaning of Section 3-1. No elector or spouse shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State.” 10 ILCS 5/3-2 (West 2008).According to the candidate, he falls within this exception because his absence from Chicago was attributable to his service as the Chief of Staff to the President of the United States. We agree with the candidate that his service constituted “business of the United States” and thus that this exception applies to him. We disagree, however, with his position that the exception saves his candidacy. In our view, the exception embodied by section 3-2 of the Election Code applies only to voter residency requirements, not to candidate residency requirements.
UPDATE: Here’s Emanuel’s petition asking the Illinois Supreme Court to review the case. Thanks to Rick Hasen (Election Law Blog) for the pointer. Disclosure: I noticed that lawyers from Mayer Brown LLP, the law firm with which I work on a part-part-part-time basis, are involved in the case; but I haven’t worked on the matter, and this is the first time I learned of Mayer’s involvement. (I’m not surprised, though, by the involvement; Mayer is headquartered in Chicago, and generally gets involved in lots of the juicy high-profile cases, both there and elsewhere.)
Peter says:
Don’t know the particulars of the law at issue, or the merits of the arguments made by both sides, but I predict the IL Sup Court will reverse this ruling and do so quickly. The justices know that Rahm will gave the Chicago machine and the state it controls a veneer of respectability, while the other candidates will be viewed as mere hacks. Rahm, of course, is not a hack. He’s just a jerk. Or so I’ve read.
January 24, 2011, 1:53 pmCalderon says:
A few comments as an attorney who lives in Chicago:
1. Depending on your viewpoint, this opinion is either an interesting exercise in statutory interpretion, employing many of the different canons and presumptions, or emblematic of the way attorneys obsess and nitpick over words and phrases. The principle that each part of a statute should be given effect and no words treated as superfluous seems to play a key role (even though on first read I didn’t see the principle cited in the text).
2. Note that intermediate Illinois appellate court judges are called “Justices.” No idea why, just seems like an odd naming convention similar to the New York Court system.
3. Given the importance of the case (throwing off the near majority candidate of the State’s major metropolis), Illinois Supreme Court review seems nearly assured.
4. On policy grounds, I find these sorts of statutes highly dubious. Suppose the mayor of Naperville, Illinois (or Topeka, Kansas, or wherever) does a bang up job as mayor of that city. Shouldn’t major cities like Chicago try to court such a mayor to come to the “big leagues,” in the hope that he or she will be able to improve their cities as well? Instead, under Chicago’s rules the successful major of another city wouldn’t be allowed to run, because he or she almost certainly won’t satisfy the residency requirement.
5. If Carol Moseley Braun wins, then between that and the tax increase, I’m moving to Houston, Texas.
January 24, 2011, 1:55 pmgab says:
Houston, the only city in the US with worse weather than Chicago..
January 24, 2011, 2:06 pmdavef says:
He can “of course” appeal to the Il supreme court? I thought one petitioned the supreme court…
[EV says: As I understand it, the formal procedure in Illinois in such cases is called "petition for leave to appeal," so indeed technically the Illinois Supreme Court's decision not to review is a denial of leave to appeal, rather than a rejection of the appeal. So it seems to me that the lay term "appeal" is fine as a shorthand synonym for "petition for leave to appeal" in such a situation. Still, to satisfy Illinois appellate proceduralists on this, I've changed it to say "ask the Illinois Supreme Court to hear the case."]
January 24, 2011, 2:06 pmHarry Schell says:
I disagree about the veneer of respectability Rahm would provide the city and certainly not the state, but it’s a personal opinion. Chi might not look as bad, if Rahm won, but the state has Pat Quinn, already a disaster in the making.
January 24, 2011, 2:09 pmSarcastro says:
The larger question of whether serving in the Federal government should torpedo your chances to later serve in state government should really take a back seat to an Obama dude getting his.
January 24, 2011, 2:11 pmSmooth, Like a Rhapsody says:
Couldn’t happen to a nicer guy; but a quick perusal leads me to agree with the dissent.
If he had left the wife and kiddies in the house in Chi and lived by himself in an apt in DC, I assume he would be eligible. He made every reasonable effort to maintain his status as resident, short of abandoning his family.
If he had left the house vacant with all his stuff there would that have made a difference? If he had celebrated Xmas and his kids’ birthdays there at the Chi house, would that have made a difference?
To say that Rahm is not a resident of Chi, but Hils was a resident of NY strains credulity.
…and what’s all that legislative history garbage doing in there?
January 24, 2011, 2:12 pmDebrah says:
Just heard this bit of spectacularly surprising news a while ago.
Agree wholeheartedly with Peter that the Illinois Court will most likely reverse this ruling.
Rahm is too much a part of the Machine and too many movers and shakers require his presence.
My senses tell me that forces at work with deep pockets — behind-the-scenes and not-so-behind-the-scenes trying to buttress the inane idea of a Carol Moseley Braun candidacy — such as gay advocacy groups, etc. have had much to do with the attempt to thwart Rahm’s candidacy.
Sure Rahm’s a jerk, but a very intelligent and effective jerk.
Does anyone remember the tawdry history of Moseley Braun during the Clinton administration?
Who on earth would believe her to be a “clean” candidate?
Which is why I always say…..when you know what someone’s personal pet issues are, this will explain support for such people as Moseley Braun. Where someone’s rear goes, their head will follow.
So to speak.
January 24, 2011, 2:12 pmCareless says:
pre-sarcasm?
January 24, 2011, 2:13 pmhappycynic says:
So. Which Justice wakes up to a severed horse head tomorrow?
January 24, 2011, 2:15 pmJ. Aldridge says:
Emanuel can always argue the law treats residents and non-residents unequally. It’s the modern American way of using the 14A to get what you want, laws be damned!
January 24, 2011, 2:20 pmFedya says:
I think the one holding balance scales and wearing a blindfold got it a long time ago.
January 24, 2011, 2:29 pmSeaDrive says:
Illinois law is different from New York Law, and the situation is different. IIRC, HRC became resident in NY, and eligible 60 or 90 days later.
January 24, 2011, 2:34 pmPQuincy says:
So, the appeals court decided, as a matter of law, that the lower court erred in applying the criteria for the active rights to vote to the passive right to be elected. (The lower court, it avers, got the facts right, meaning that Emmanuel can in fact vote in this election, but may not be a candidate).
Since the two provisions involved are in entirely different sections of the Municipal Code, the question of legislative intent (did the city intend to create different standards of residence for active vs. passive rights?) is muddy, barring clear statements. But the fact that the code sections are so distant makes it difficult to argue that a single quality, “residency” is being created by these two different parts of the code that ought to apply to both active rights (voting) and passive rights (being elected). In political theory, passive and active democratic rights have long been distinct, and they remain separated in many cases at the Federal level (you can vote for President at 18, but can be a candidate only when you reach 30). This demonstrates that separate criteria for residency can not, eo ipso, count as discrimination or as raising a 14th Amendment claim. All persons are treated equally before the law as voters, and all are treated equally before the law as candidates — and tradition, theory and Federal law make it clear that the two conditions are sufficiently separate that one standard need not apply to both.
My first reaction was the appeals court was wrong, but closer thought is persuading me that their decision was correct.
January 24, 2011, 2:35 pmDave N. says:
Also federal versus state office. I do not think there is actually a requirement that you be a resident of a state for any particular length of time to run for Congress — Article 2 merely requires that person be “an Inhabitant.”
January 24, 2011, 2:44 pmKazinski says:
It’s hard to get upset about Rahm getting poleaxed like that by the appeals court, but ironically he’s probably the most conservative, and competent candidate in the race.
January 24, 2011, 2:49 pmLots of Dead Fish in the Mail Tonight | Snowflakes in Hell says:
[...] UPDATE: Eugene Volokh takes a closer look at the law in question and thinks the law is probably on Rahm̵…. [...]
January 24, 2011, 2:52 pmUrso says:
This strikes me as one of those cases where judicial discretion is merited. I realize it doesn’t meet the textbook definition of a “political question” but in a close case like this it seems wise to defer to the voters . If 50.1% of the electorate doesn’t believe that Emanuel is a “true resident” of Chicago, he won’t become mayor.
January 24, 2011, 2:55 pmkimsch says:
Our previous rep in IL-8 actually lived in IL-10. She had to live in the state, but not necessarily in the district. Melissa Bean’s Rep in Congress wasn’t herself, but Mark Kirk. When Kirk went to the Senate prior to the end of the 111th Congress, Melissa Bean, Representative for the 8th District of Illinois, went unrepresented along with the rest of the 10th District for that Lame Duck period.
January 24, 2011, 2:55 pmDave M. says:
Houston: Where it rains petrochemicals every day, and our trees are green because that’s the color we paint them.
January 24, 2011, 2:57 pmMDT says:
Sarcastro,
The larger question of whether serving in the Federal government
or anywhere else you’re living/working except in your supposed domicile
should torpedo your chances to later serve in state government
What precludes “later”? He can move back and run against the actually-living-in-Chicago incumbent the very next time the office is up for election
should really take a back seat to an Obama dude getting his.
Nah, it’s just that a bunch of us wags really want to see Carol Moseley Braun in the thick of this race. Guaranteed comedy gold.
Seriously, this sort of restriction is no joke in other jurisdictions. A few years ago we had a San Francisco supervisor elected who proved actually to be living in Burlingame (his residence in his supposed district had no electricity, next-to-no water use, &c., and no cars ever seemed to park there, and eventually people got the idea). He was sentenced to a year of jail time for perjury for claiming otherwise when he filed for candidacy. (Granted, his larger problem was charges of extortion against local businesses, and for that IIRC he got prison — two or three years — rather than jail.)
A Berkeley City Councilman (I forget who now), similarly got busted and removed for living in (gasp!) Oakland not long ago, but I think he was made to resign rather than subjected to criminal penalties.
[I tried a quick Google of "city council oakland berkeley residency," and got as top result Berkeley council puts off vote on paying for sex-change surgery. I confess that there are ways in which I don't miss the Bay Area so much.]
It’s important that representatives responsible for particular polities want to represent them sufficiently to want to live in them; that people who want to be executive directors of anything from the largest city to the smallest hamlet want to live in it. The easiest way to demonstrate the wanting is by actually doing it, and the law’s set up so.
January 24, 2011, 3:01 pmOwen H. says:
Seems to me this reasoning would also prevent returning soldiers from running for office.
I cannot see how the court can rationally conclude that he did not maintain residency in Chicago to begin with. I am also puzzled by the inclusion of “spouse”, as in “no elector or spouse”. Does that mean that Rahm isn’t eligible, but his wife is? After all, if they are using the word “elector” to mean only voter and not candidate, spouse makes no such distinction.
January 24, 2011, 3:02 pmSarcastro says:
[Huh. Well, looks like my cynical attempt at pre-sarcasm has failed.
The question is which lesson to learn.
1) Always be reactionary - no preemprive strikes, or you may look silly on the Internets.
2) preemptive strikes work great!]
January 24, 2011, 3:05 pmHeh says:
“If he had left the house vacant with all his stuff there would that have made a difference? If he had celebrated Xmas and his kids’ birthdays there at the Chi house, would that have made a difference?”
Yes. But how could he “dwell conceptually” in a house he legally could not enter?
He rented to the wrong person, and in the hopes apparently of making a few bucks, made it pretty much impossible to argue that he was living there for a year before the Feb. election.
Strains credulity.
Let him wait… live in Chicago a few years with his family, and run for mayor when legally he can do so. Except… these fellas just hate waiting, eh?
Want it all… and now!
January 24, 2011, 3:06 pmHeh says:
“…but ironically he’s probably the most conservative, and competent candidate in the race.”
Lots of Chicagoans aren’t interested in candidate Emanual’s brand of “conservatism”. They care about how the city is run, not in filling Emanuels’ cronies pockets with all the contracts and business dealings he will lord over as mayor.
Let’s leave it at that.
Why can’t he tackle New York City, say, and take on Mayor Bloomberg in an East Coast City. Chicago and the Midwest doesn’t need Emanuael’s international ways of making trouble and “assholeism”. Keep it on the national stage that kind of career.
January 24, 2011, 3:09 pmDave M. says:
‘Spouse’ was probably included specifically to address the fact that, before an Act of the last Congress, military spouses were required to take up residency and citizenship of the state wherein the military member had been assigned. Appears Chicago was being generous with it voter requirements long before Congress got its head on straight.
January 24, 2011, 3:10 pmDavid M. Nieporent says:
Also, they were running for different offices. (Duh.) Emanuel is running for a local office, while Hillary ran for federal office. Under U.S. Term Limits, states are not free to impose additional criteria beyond those found in the Constitution; the Constitution requires that senators be an inhabitant of the state at the time of election. No residency period.
EDIT: I see Dave N already made this point. (Yes, we’re different people.)
January 24, 2011, 3:29 pmCareless says:
And here I was, hoping we’d get the “The Rent Is Too Damn High Party” to get someone to carpetbag his way over and get in the election.
January 24, 2011, 3:33 pmMilhouse says:
Was he claiming the homestead exemption in DC?
January 24, 2011, 3:40 pmAnderson says:
He made every reasonable effort to maintain his status as resident, short of
abandoning his familyresiding.Fixed!
January 24, 2011, 3:41 pmADF Alliance Alert » Illinois court holds Rahm Emanuel isn’t eligible to run for Mayor of Chicago says:
[...] Volokh writing at The Volokh Conspiracy: “The 2–1 decision is Maksym v. Board of Election Commissioners, decided today; thanks [...]
January 24, 2011, 3:43 pmJoe (not that one) says:
So. Which Justice wakes up to a severed horse head tomorrow?
The luckiest one. The second luckiest one will wake up with the severed head of the third luckiest one in bed with him.
(My favorite quote about Rahm: “First, he makes a list of his enemies. Then he makes a list of his enemies’ friends. Then he makes a list of how they’re all going to pay.”
January 24, 2011, 3:47 pmkimsch says:
Milhouse, that didn’t stop Rangel or others from claiming DC homestead exemptions AND the homestead exemption in their home states…
January 24, 2011, 3:48 pmWill J. Richardson says:
For me, the most persuasive part of the opinion is the discussion of the specific candidate residency exemption granted active duty military.
January 24, 2011, 3:53 pmBob Leibowitz says:
Normally one is expected to file and pay income taxes in the state in which one resides, not elsewhere.
January 24, 2011, 3:59 pmAnderson says:
Interesting, Will. That is indeed a good argument.
January 24, 2011, 4:08 pmThorley Winston says:
Question: what’s the standard for what constitutes the “business of the United States?”
For example, would Michelle Obama, for example, be eligible to enter the race and have her prior absence from Chicago be considered the “business of the United States” because was married to the President and performed a few ceremonial functions?
Or is this exception intended to cover military personnel, elected representatives, and ambassadors whose jobs on behalf of the United States require them to relocate to perform them?
January 24, 2011, 4:13 pmjosh says:
I haven’t argued before Justice Hoffman (yes, “Justice”. Don’t get me started), but I’ve seen him in action and know he is well regarded. That said, and without knowing the legal substance, this outcome seems absurd. But I’ll go with the other guy if Rahm isn’t on the ballot
(BTW, if Rahm is out, it’ll likely be Gary Chico, not Mosley Braun. Good for Chicago, and great for the conspiracy theorists like Debrah. Seriously, where do you get this dreck: “My senses tell [sic] me that forces at work with deep pockets … such as gay advocacy groups, etc. have had much to do with the attempt to thwart Rahm’s candidacy”? Gay advocacy groups are behind it? Do you have any support for such a claim?)
January 24, 2011, 4:15 pmCalderon says:
Thorley Winston — note that the opinion finds that Rahm was doing the business of the United States. But it also finds that exception applies only to one of the requirements Rahm had to satisfy.
To be a little more specific, the statute at issue states (I added the numbers in brackets):
[1], being a voter, has a “residency” requirement of its own. The key question of the opinion is whether satisfying the “residency” requirement of [1] also satisfies the “resided in” requirement of [2]. The court holds that these are separate requirements and that [2] requires a candidate to “actually live” in the municipality, which appears to more or less mean physical presence in the state.
When it comes to the “doing business of the United States” exception, the court finds that Rahm satisfies that exception and so satisfies [1]. But the courts also hold that exception does not apply to [2], and Rahm had not “resided in” the state, he’s not eligible to be a mayoral candidate.
January 24, 2011, 4:28 pmAnderson says:
Gay advocacy groups are behind it? Do you have any support for such a claim?
Debrah’s claims about “gay issues” are not confined to “evidence”; she has her “senses” to rely upon, and we must rely upon her reports thereof.
January 24, 2011, 4:43 pmRedman says:
Somebody is going to make a LOT of money.
January 24, 2011, 4:48 pmSteve G says:
This is the most persuasive argument for me too, but there is a problem that 3.1-10.5(d) is not wholly redundant if 3-2 applies to candidates as well as voters. Specficailly, 3-2 says that the elector or spouse will not LOSE residence by reason of his absence on the business of the United States. However, 3.1-10.5(d) says that time in military service counts as residency in the municipality if you lived in the municipality before and after the military service.
Put another way, if you lived there at least a year, you would not lose your residence under 3-2 if you were absent on the business of the U.S. However, if you lived there only 2 months, then left on the business of the United States for a year, then tried to run a month after you returned, it’s not clear to me that 3-2 would help you, since the problem isn’t one of losing your resdiency status as never having had it.
However, under 3.1-10.5(d), you could live there for 2 months, serve a 3-year-tour, then come back and be immediately eligible to run.
There’s a certain amount of splitting hairs there, but I don’t know that it’s more splitting hairs than saying that there’s a “residency” requirement under 3-1 (that is satisfied by 3-2′s provision that you won’t lose your residence), but a “resided in” requirement under 3.1-10.5(a) (not satisfied by 3-2), even though BOTH 3.1-10.5(a) and 3-1 say “resided in”.
January 24, 2011, 4:49 pmWill J. Richardson says:
Steve G: But as the Court points out, Candidate qualifications as to residency are codified in 65 ILCS 5/3.1–10-5(a). The qualifications of electors (voters) is codified at 10 ILCS 5/3–2, which contains the exception for absence on “the business of the United States”. It is not clear to me why a residency exception specific to electors eligibility to vote should apply to candidate eligibility specified in an entirely different Title of the statutes. Your argument seems to assume that the active military service exception and the business of the United States exceptions are in the same Title of the statutes.
January 24, 2011, 5:14 pmRahm tossed from Chicago ballot « Internet Scofflaw says:
[...] appeals court has ruled that he is not a Chicago [...]
January 24, 2011, 5:27 pmSteve G says:
I don’t assume it, but I do seem to have implied it, so I apologize if I misled. I agree my argument would be stronger if they were in the same Title. However, because 65 ILCS 5/3.1–10–5(a) has a requirement that a person be (1) an elector (voter) and (2) have “resided in” the municapliaty for time X, and the requirement to meet “test (1),” which is found in 10 ILCS 5/3–1, also includes a “resided in” requirement (for time Y), my default position would be to interpret “resided in” the same in both cases unless there’s a reason to think they mean something different.
If, as the court argues, 10 ILCS 5/3-2 would make 65 ILCs 5/3.1-10-5(d) completely redundant, this would be a good reason to think they meant different things. My argument was that 5/3.1-10-5(d) seems to do at least one thing that 5/3-2 doesn’t, so the “it would be redundant” argument isn’t quite true, and so I return to my default interpretation that the same words in related statutes (though not in the same Title) should be interpretated the same way.
January 24, 2011, 5:55 pmCalderon says:
One ancillary point from the WSJ article on this decision, since we all know how the VC commentariat loves to talk about judges recusing themselves based on the work or beliefs of their spouses:
January 24, 2011, 5:59 pmbeowulf says:
Steve G.
You’re exactly right. The military exception treats the “elector” as if he were still constructively living at home (and merely commuting to work each morning to Afghanistan), the clock to accrue the necessary 1 year in municipality (e.g. to run for office) keep ticking. The “business of the United States” exception is different in that it freezes elector’s residency status but he can’t keep adding time to residency period (as per military rule).
Let’s be clear, I think Rahm is what’s wrong with America but the guy’s being screwed over. He’s been a qualified elector who’d resided in the municipality for well longer than a year immediately before his absence due to “business of the United States”iced the clock. He should be on the ballot.
January 24, 2011, 6:21 pmMurgatroyd says:
If “intent” is the standard, then why did Emanuel make his renter sign a long-term lease that isn’t over until long after the election?
If “intent” is the standard, then why does Emanuel have to move back to Chicago at all? Why can’t he continue to live in D.C. with the stated “intent” to move back to Chicago in, say, 2018?
January 24, 2011, 7:53 pmepluribus says:
beowulf says:
The last part of your sentence makes some sense–I mean it’s based on some facts. But the first part? OMG, Rahm Emanuel is the cause of massive unemployment and government deficits and lack of health insurance for umpteen million Americans and growing dependence on Mideast oil and the nuclearization of Iran and North Korea and the War on Terror and the ongoing wars in Iraq and Afghanistan, etc., etc. All that’s wrong with America. Thanks so much for your insight.
January 24, 2011, 7:56 pmdave says:
The language seems a bit dated, but as far as I can tell, the law just says a candidate has to have been a resident for a year prior to election, it doesn’t say it has to be the year prior to election.
January 24, 2011, 8:11 pmbeowulf says:
You’re assuming that I agree with your list of “what’s wrong with America”. But if you feel better getting that off your chest, no worries. :o)
January 24, 2011, 9:22 pm1040 says:
I don’t understand why you are so sympathetic to the take over of America by 9.5 fingered communist fascists.
January 24, 2011, 9:32 pmThe Awful Truth says:
Chicago also has a residency requirement for its public employees. In the case of the police, this is a contentious enough issue that the police union lists it first (ahead of pension funding) on its list of questions for mayoral candidates. Mayor Emmanuel could face some real embarrassment on this issue.
January 24, 2011, 9:58 pmCornellian says:
I’m a bit skeptical of the idea of residency requirements for candidates in state and municipal elections. I see can why requiring the mayor of Chicago to live in Chicago makes some sense, but why require a candidate to move to Chicago before running? If being a non-resident is that big a deal for the voters, presumably the other candidates will make an issue of it and the guy won’t be elected.
January 24, 2011, 10:31 pmbellisaurius says:
Dave,
I’ve read the opinion, at least five newspaper articles (the best one probably at the chicago news collective), lots of blog posts and a couple hundred blog comments on this topic today. I feel I can say with some authority that you win the internets for the most creative and conceivably constructive comment with the a/the distinction.
January 24, 2011, 10:57 pmRicardo says:
Tell that to California — they are notorious for hitting people with taxes even if they spend most of their time out of the state (out of the country even). By California standards, once you become a resident you really have to sever all of your ties with the state (no property, no driver’s license or vehicle registration, no bills getting mailed to a California address, etc) to lose residency for tax purposes. On the other hand, if you are a student, you have to prove continuous physical presence in California and no legal ties to any other state for one year before you qualify for in-state tuition — go figure.
The point of this is that legal residency can get complicated, changes depending on the context (taxes, voting, public benefits, etc) and is not necessarily as simple as looking at where you happen to sleep most nights. Someone with a consulting job could quite easily spend a majority of the days in a year outside his or her city and state of official residence.
January 25, 2011, 1:56 amRicardo says:
In general, there is a distinction between one’s domicile and one’s place of habitual residence. Rahm Emanuel’s domicile was arguably Chicago: he kept his house there and might be able to show he had a demonstrated intent of returning there and making it his place of permanent residence. His place of habitual residence is just where he spent most of his time: D.C.
If Chicago’s residency requirement genuinely requires physical presence, then of course Emanuel doesn’t have a leg to stand on. If a court interprets it as closer to the concept of domicile (like many states do with taxes and voting), then maybe he has a shot.
January 25, 2011, 4:07 amepluribus says:
beowulf says:
I touched on at least a few of the points most people would include in a list of “what’s wrong with America.” You said “I think Rahm is what’s wrong with America.” No, I don’t assume you agree with my list–but I don’t agree with your grand overgeneralization about Emanuel, either. The point of my list was to express that disagreement.
January 25, 2011, 7:46 amepluribus says:
The dissent, agreeing with both the election board and the circuit court, clearly has the better argument. It quotes the landmark Illinois case on the subject, which confirms the well-established legal premise that once a residence has been established, “a person, by temporary removal of himself and his family into another State with the intention to return, will not thereby lose his residence in this State provided he does no act from which the acquisition of a new residence may be inferred.” Pope, 370 Ill. at 200. Emanuel was born in Chicago, purchased a home in Chicago in 1998 (which he still owns), lived in Chicago continuously until he went to work for the president in January, 2009. After he went to Washington, he kept his personal bank account in Chicago, which listed his Chicago home on his checks. He left his piano, family heirlooms, and other property in the Chicago house, although it was temporarily rented out (according to the evidence, so it would not stand empty and thus be a security risk). He “never voted in Washington, D.C., never changed his driver’s license to Washington, D.C., never registered his car in Washington, D.C., never purchased property in Washington, D.C., never conducted personal banking in Washington, D.C., and never demonstrated an intent to sell his Chicago home.” He did “no act from which the acquisition of a new residence may be inferred.”
January 25, 2011, 8:28 amRicardo says:
epluribus, I think the dissent’s analysis would be more convincing if the law said something about a candidate maintaining a domicile or permanent residence in the city using those exact terms. The language used though is “reside in” which brings up the the question of which of the multiple definitions of “reside” to use. I can’t blame the court for saying that in order to “reside in” a state, you have to actually be physically present in that state much of the time.
Emanuel is clearly a resident of Chicago and Illinois for many other legal purposes but it does not automatically follow that he is qualified to run for office. As I alluded to above, you can be a resident of California for tax purposes but not for in-state tuition purposes. States and localities are perfectly free to use different standards of “residence” depending on the question. It is not like U.S. citizenship where there is one unambiguous and uniform standard.
January 25, 2011, 9:43 amlucia says:
If his only concern was security, he could have hired a house sitter. When I was in grad school, one of my fellow grad students frequently found house-sitting jobs for faculty members on sabbatical who wanted to be able to return to Urbana for holidays but didn’t want the house left empty.
If Bill Daley wants to keep his options open four years from now he might want to consider hiring a house sitter.
On the law– INAL. I have no idea what the correct interpretation should be. That said, I can understand why without regard to the current specific situation in involving Rahm per se, some voters policy preference would be to require candidates to have pre-existing physical residence in the city and others voters would prefer not to require this.
January 25, 2011, 9:53 amMorat20 says:
You don’t want to move to Texas right now. Let the Leg sort out our budget first, then decide. The end result of that is going to be…unpleasant. Texas is already dead last on per-capita state spending, and our current shortfall is huge — 15 to 25 billion (depending on how you count. I lean towards the latter, especially since half the difference is state-mandated education spending levels that are being ignored by the ‘It’s only 15 billion’ crowd). Since taxes are, of course, off the table (but fees aren’t!) the end result will be ugly and unpleasant. You might find other states more palatable, with better services and more sensical tax structures. (Fee-based government is just awful. The nickle-and-diming-and-”Oh god, how much is my car registration?” is worse than just tacking a point on your property taxes). Also, the weather in Austin is better. (I live in Houston, FYI).
January 25, 2011, 10:04 amRicardo says:
That’s the conventional wisdom behind the VAT in Europe — apparently, very few people bitch and complain when the VAT is raised even though everyone is affected. On the other hand, proposing tuition hikes at state-run universities leads to barricades and riots.
January 25, 2011, 10:22 amepluribus says:
Ricardo says:
The applicable section of the Municipal Code says that the candidate must be a “qualified elector” and must have “resided” in the municipality for at least one year next preceding the election. Pope states that, once a “residence” has been established, a person does not lose his “residence” by temporarily moving into another state unless he does “some act” from which the acquisition of a new “residence” may be inferred. 370 Ill. at 200. The majority concedes that the facts are not in dispute. It also concedes that Emanuel is a “qualified elector” of Chicago. None of the facts show that Emanuel did any “act” from which the acquisition of a new “residence” may be inferred. What basis is there for arguing that the statutory word “resided” and the case law discussing “residence” establish different tests? The dissent says there is none, and I am persuaded. “Resided” = “residence.”
January 25, 2011, 10:50 amRicardo says:
The basis the court cites is the history Illinois has of listing out voter v. candidate qualifications and the military exception that would be rendered superfluous under the interpretation you prefer. I don’t see a slam-dunk here either way.
January 25, 2011, 12:02 pmCalderon says:
Epluribus, the argument for saying that the “residency” requirement and “resided in” mean two different things comes from the text of the statute, and the statutory principle that all parts of a statute should be given meaning whenever possible.
The statute reads as follows (I’ve inserted the bracketed number to help with subsequent discussion):
[1] requires “residency,” and all the judges agree Rahm satisfies [1]. The argument for the majority is that [2] must mean something different from the “residency” requirement for being a voter. If you and the dissent were correct, then the statute should simply say “A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality.” But the statute does not end there; it also includes the language of [2]. To give the language of [2] meaning, it must mean something different than the “residency” requirement of [1]. Otherwise, the language of [2] is being treated as superfluous. The majority sets forth this argument on and around page 16.
January 25, 2011, 12:02 pmNoah says:
Apples and oranges. Rahm is the State of Illinois statutes and Mrs. Clinton was the US Constitution that only requires you to be a resident of the state or district when you take the oath of office.
January 25, 2011, 12:52 pmSome Dead Fish With Your Deep Dish Pizza | Around The Sphere says:
[...] Eugene Volokh [...]
January 25, 2011, 1:19 pmepluribus says:
Calderon says:
That is the majority’s argument, but it is wrong as applied to this case. The statute prescribing the qualifications of a candidate says that the candidate must be a qualified elector and must have “resided” in the municipality at least one year next preceding the election. The statute prescribing the qualifications of an elector says that a qualified elector must be a citizen of the United States, must be at least 18 years of age, and must have “resided” in the state and the election district for 30 days next preceding the election. The two statutes do not establish different definitions of “resided.” They impose different time requirements (30 days vs. one year) and add citizenship and age requirements for qualified electors. “Resided” is “resided” in both statutes. The majority requires “actual” residence (presumably meaning actual presence) for candidates instead of merely applying the traditional legal definition of residence. But this is absurd. The dissent asks:
“How many days may a person stay away from his home before the majority would decide he no longer “actually resides” in it? Would the majority have us pick a number out of a hat? A standard which cannot be defined cannot be applied. If the majority had picked even an arbitrary number of days that voters need not sleep in their own beds before they violated this new arbitrary standard, then at least we would be able to apply this new standard. Should a court consider just the number of days a voter or candidate is absent or are there other relevant factors under the new standard? Apparently, only the majority knows but, for some reason, fails to share it with those charged to abide by it if they want to be a candidate for municipal office.”
January 25, 2011, 1:24 pmSteve G says:
But [2] would mean something different even without saying that “reside in” means different things in the two provisions. [1] requires that one have “reside[d] in” the state and the district for 30 days (to be a qualified elector). [2] Requires that one also have “resided in” the municipality for one year. [2] can be read to say that there’s a resideny requirement that is LONGER than to be a voter, without having to say that it is of a different kind (even though both use the words “reside in”).
January 25, 2011, 1:27 pmCalderon says:
To epluribus and SteveG, fair points, but I still don’t think they rebut the majority’s argument. If the legislature meant to accomplish the result you state, then the state should read “A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality
and has resided in the municipalityat least one year next preceding the election or appointment …” The reading that both of you suggest still would treat part of the statute as superfluous (though they do indicate I should have included another bracket before the “at least one year” portion of the statute!).In any case, looks like we’ll get the descriptive answer of what the statute means shortly from the Ill SCt.
January 25, 2011, 1:49 pmepluribus says:
Calderon says:
Well, that’s what the statute says.
January 25, 2011, 2:09 pmepluribus says:
Sorry, Calderon, I misquoted your previous point and so answered it incorrectly. You full rewrite would require that a candidate have been a citizen for one year and have been eighteen years old for one year. That would up the age requirement to 19. The legislature only required that the candidate have been a resident for one year as opposed to just 30 days. The added requirement of residence for one year is not superfluous. The legislature thought that candidates should have been residents longer than electors. That’s all. The more I reflect on this case the more I am persuaded that the majority is wrong.
January 25, 2011, 2:13 pmepluribus says:
“Ill. court issues stay; Rahm back on the ballot.”
http://firstread.msnbc.msn.com/_news/2011/01/25/5915616-ill-court-issues-stay-rahm-back-on-the-ballot
January 25, 2011, 2:16 pmcesek says:
It is the difference between 30 days [1] and 365 days [2].
January 25, 2011, 2:35 pmFederal Farmer says:
in fact a soldier was denied in 2007 on this same statute and a state legislature filed a bill to fix it so our legislators know how this works.
Rahm and others has used our quirky election laws to knock opponents off the ballot in the past so he also knows how this works.
No one should be above the law.
I agree that the law should be changed, but until then he should get no preferential treatment.
January 25, 2011, 2:45 pmCalderon says:
Cesek — I responded to the 30 day, 1 year issue in a subsequent post. This would still make the “resided in” portion of the statue superfluous.
epluribus — I still think that your suggestion would make the “resided in” language of the statute superfluous. If the concern was 18 versus 19 years old, the statute simply could have read “A person is not eligible for an elective municipal office unless that person is 18 years old and otherwise a qualified elector of the municipality for at least one year next preceding the election or appointment.” I don’t think there’s any way to give the “resided in” language meaning unless its means something different that then “residency” requirement for voters. But we’ll see what the Ill SCt says.
January 25, 2011, 3:51 pmcesek says:
I posted before the subsequent posts so I missed it but read it afterwards.
From the dissent:
“If the majority truly believes that “actually resides” is the correct standard to apply, the majority should remand this caseback to the Board for a further hearing.”
Should the appellate court ruling hold, I do wonder what the future holds for any candidates in the state that find themselves temporarily outside the municipality in which they hold residence in- unless of course they are within the sole exception of military duty.
January 25, 2011, 4:58 pmepluribus says:
Calderon says:
I don’t.
Yep, and apparently sooner rather than later.
January 25, 2011, 5:54 pmll says:
1 Can a person be a legal resident of a place and reside in some other place?
2 It seems to me the dissent both begs the question (it assumes as a starting point the result to be reasoned to) and conflates and uses “resident” and “residence” and “resides in” willy-nilly.
3 Professional athaletes and entertainers have a constant battle with NYC, which wants pro rata income tax for every appearance there, no matter how few days it is.
January 26, 2011, 1:54 amRicardo says:
Sure, college students reside at their chosen college but frequently are considered legal residents of the house their parents live in unless they take steps like renting an apartment, having all bills sent there, opening a bank account, getting a driver’s license, registering to vote and serving jury duty. A California resident sent to work in Singapore for 18 months on a temporary work visa would ordinarily retain CA residence.
Rahm Emanuel appears to have tried his best to be like a kid in college by keeping all his ties to Chicago.
January 26, 2011, 2:55 amDavid Schwartz says:
That argument makes no sense at all.
“[S]ubsection 3.1–10-5(a) of the Municipal Code, allows those in
active military service to be deemed residents of a municipality
during the pendency of their military service even when they reside
outside the municipality during their service.”
So this says that even if you are not in fact legally a resident (for any reason at all), you can still be considered a resident.
“[N]o elector shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State.”
This simply excludes one ground from the reasons you might be deemed to no longer be a resident. You can still be deemed no longer a resident for other reasons, even while you’re on government business.
The exemption given to those in active military service is *much* broader than the exemption given for absence on government business. Active military servicemen can be deemed to not have lost residency even if they otherwise would have lost residency for *any* reason. Those on government business can merely not be deemed to have lost residency due to the absence on that business.
January 26, 2011, 7:30 am