Disclaimer – This post will only focus on the details of the majority’s statutory interpretation. I am ignoring case law because the two sides disagree vehemently on it (the majority found it contradictory and not controlling, the dissent found the opposite.) The newspaper articles I read on the decision only explained its general conclusions, but I wanted to see how the court came to its conclusion, so I read the opinion. This post summarizes the guts of that opinion. (Not everyone will consider this pleasure reading)
Disclaimer 2 – I have no opinion on who should be Chicago’s next mayor.
Disclaimer 3 – The sections in italics are my own tangents and were not discussed in the opinion
Background –
Rahm Emanuel was born in Chicago and lived in the city for most of his adult life, he also represented the Illinois “fightin” Fifth District – which includes the north side of Chicago – in the U.S. House of Representatives. In January of 2009, Emanuel moved to Washington D.C. to serve as White House Chief of Staff and rented out his newly vacated Chicago home to a third party (but left many belongings in the basement.) In October of 2010 Emanuel resigned as Chief of Staff and moved back to Chicago to run for Mayor. He is currently polling at 44% (double that of his nearest opponent.)
Emanuel’s candidacy was challenged on the grounds that he is not a Chicago resident. The relevant statute is Illinois Municipal Code section 5/3.1-10-5, which states the following:
“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 municipality at least one year next preceding the election…” (emphasis added)
Emanuel’s supporters essentially argue, “Of course he’s a resident. He was born and raised in Chicago, owns a home in Chicago, pays taxes in Chicago, intended to return to Chicago, and he only left Chicago temporarily to serve our country.”
Emanuel’s opponents’ response is, “We don’t disagree with what you say, but the law says he’s not eligible to run for mayor because he didn’t live in Chicago during the year preceding the election. And the law is the law.”
Emanuel’s opponents first argued their case to the Chicago Board of Elections and lost. They then argued to a Cook County Circuit Court and lost again. Finally, they argued to the Illinois Court of Appeals and won. So as of this writing, Emanuel is not allowed on the mayoral ballot because he violates the requirements of the Illinois Municipal Code. (Emanuel appealed to the Illinois Supreme Court – which is expected to rule on the case soon.)
The Majority’s Analysis –
The Illinois Municipal Code lists two requirements for a candidate’s eligibility: 1) the candidate must be a “qualified elector of the municipality” (meaning he is allowed to vote in the municipality) and 2) the candidate must have “resided in the municipality at least one year next preceding the election” (this is the section in dispute)
The requirements to be a “qualified elector” are listed in a separate election law statute, and are as follows: the person must 1) have resided in the election district for the 30 days preceding the election, 2) be a US citizen, and 3) and be 18 or older.
There is an exception to the 30-day residency requirement in the election law statute stating that (I’ll paraphrase) “No elector shall be deemed to have lost his/her residence in any election district in this State by reason of his/her absence on business of the United States.” (emphasis added)
Emanuel’s service as White House Chief of Staff qualifies as “business of the United States.” Therefore, the majority recognizes that he meets the requirements of being a “qualified elector.”
However, the second part of the Municipal Code states that in addition to being a qualified elector, the candidate must have “resided in the municipality at least one year next preceding the election.” And as we know, Emanuel did not live in Chicago during the preceding year.
There is an exception – listed in the Illinois Municipal Code itself – which states that a person is exempt from the one year requirement if his/her residency is interrupted by active duty in the military. Emanuel’s service as White House Chief of Staff does not fall under this exception.
Can Emanuel use the “business of the United States” exception to get out of the one year requirement? Probably not.
The “one year” requirement was added to the Illinois Municipal Code to further limit the “qualified elector” requirement. It extends the residency requirement from 30-days to one year, and it narrows the exception from any “business of the United States” to only “active duty military service.”
A look at the legislative intent of the military exception – added in 2007 – shows that when presenting the exception to the General Assembly for a vote, one of its co-sponsors explained, “A situation occurred in my district where an individual was in Iraq… he came back, wanted to run for municipal office, but did not meet the one year residency requirement. This would simply allow them to come back to the same district, same ward, and run as if they had been there.”
This insinuates that the soldier who went to Iraq could not use the “business of the United States” exception in the election law to avoid the “one year” requirement in the Illinois Municipal Code – which is why this Senator felt he needed to carve out a new exception for military personnel.
Does the fact that the Senator didn’t use the “business of the United States” language in his military exception mean he consciously meant to narrow the exception and exclude federal government employees like Emanuel? Or does it mean he simply wanted to add an exception for the military personnel in his district and didn’t give any thought to the “business of the United States” language in the election laws? (i.e. lazy drafting)
Or is it possible that the “business of the United States” in the election law exception was meant to apply to the one year requirement, which is why the municipal code takes the trouble to reference the “qualified elector” rule rather than simply saying the candidate has to be 18 or older and a U.S. Citizen?
To further its point, the majority attempts to determine the legislature’s meaning of the word “resided” as it was used in the Illinois Municipal Code by analyzing its use of the words “resides” and “resident” in the military exception. As you recall: the language of the Illinois Municipal Code was: “has resided in the municipality at least one year next preceding the election.” And the controversy is over what they mean by “resided.”
Does Emanuel’s owning of a home and intent to return suffice as “resided”? Not according to the majority’s reading.
The majority believes that “resident” was used in the exception to describe legal residency, whereas “resides” was used to refer to having a physical presence (especially given the Senator’s explanation.) The exception is broken down into three parts. I’ll paraphrase them, but use the words “reside” and “resident” in context:
1 – If a person is a resident of a municipality prior to active duty, and
2 – if that person resides outside the municipality during active duty, then
3 – if that person returns to the municipality upon completion of duty, then the time during which the person resides outside the municipality is deemed to be time that the person was a resident of the municipality for purposes of this statute.
If the definition of “resided” in main provision of the Illinois Municipal Code (“has resided in the municipality at least one year”) can be derived from the way that “resides” is used in the military exception, then it means that the candidate must have an actual physical presence in the city for the year prior to his candidacy. (A flaw in this reasoning could be that the exception was drafted by a different legislature long after the original rule was written.)
Another consideration of the majority was the legislative intent of this – or any – “reside in” requirement. The majority cites a 1901 Illinois Supreme Court opinion stating that the “reside in” requirement exists to ensure “that those who represent local units of government shall themselves be component parts of such units.” It further states that the “reside in” requirements “can only be truly served by requiring such representatives to be and remain actual residents of the units which they represent… A mere constructive resident has no better opportunities for knowing the wants and rightful demands of his constituents, than a non-resident, and is as much beyond the wholesome influence of direct contact with them.”
No surprises there. The legislature just wants the representative of a district to actually live there so he/she has a stake in its well-being.
My Conclusion –
There certainly isn’t any doubt that Emanuel is from Chicago, cares about Chicago, and fully intended to return to Chicago upon completion of his service as White House Chief of Staff. So does that mean he should be allowed on the ballot because he complies with the spirit of the law? Would not allowing him on the ballot be nothing more than the strict application of a legal technicality?
It is difficult to argue that the Illinois Municipal Code’s residency requirement was written to keep candidates like Emanuel off the ballot. But for many, it is just as difficult to say that a Court should have the right to expand the interpretation of such a clearly written statute. (Although, that happens every day.)
I think the Supreme Court will overrule the Appellate Court’s decision, but it will be interesting to see how they do it. Will they cite the case law from the lower courts used in the dissent? Or will they simply set the precedent themselves and expand the definition of “resides in”?
