by John F. Di Leo
As soon as Mayor Richard M. Daley announced his retirement, Washington D.C. resident Rahm Emanuel handed a resignation letter to his boss, packed his bags, and headed back to Chicago.
Throughout the ensuing battle to enforce the Illinois election code, the Rahm Emanuel for Mayor campaign has been chanting the slogan “Let the People Decide!” They collected enough signatures; surely that should be enough. A pesky little thing like not being a Chicago resident for half of the statutory requirement of one year shouldn’t be a roadblock if a majority of the people of Chicago – living, dead, and fictional – vote to make him their Mayor, right?
There are only a few problems with this position, issues that would be obvious elsewhere, but people are so unaccustomed to following the law in Illinois, they haven’t even entered the minds of some of our politicians and commentators.
A pure democracy might put every question up to a general referendum every day, without regard to precedent or written law; thank Heaven we don’t have that kind of mess. Rather, we have a Constitutional republic, which has rules and procedures that have been voted on by legislatures and plebiscites, and have stood the test of time. These constitute what is known as the Rule of Law, and that’s what governs us here in the United States, from the local level all the way up to the federal.
In Chicago, a candidate must first be a legitimate candidate who can legally serve if elected; then he must present a stack of petitions and filing forms. If those all pass muster, he can stand for the primary election, and if he wins that, he competes in a general. At any stage, he can be knocked out; first and foremost, he must be a legitimate candidate.
Now, this varies from jurisdiction to jurisdiction, but in Illinois, it’s pretty easy to get on the ballot as a mayoral candidate. The candidate has to have been a resident of the jurisdiction for a year. Not any year, mind you, but specifically, the year immediately preceding the general mayoral election.
Rahm Emanuel, as everyone now knows, used to live in a house in Chicago, which he rented out in mid-2009 when he moved to Washington, DC. He could have rented a smaller place in Chicago to live in, perhaps closer to the airport, but he didn’t. He just turned his house into an investment property and left. As proof that he no longer lived in the house, all Chicagoans now know who did in fact live there; one of the tenants - Rob Halpin - filed for mayor himself. (Chicago is nothing if not interesting).
Emanuel therefore had no Chicago residence for over a year. When Mayor Daley announced that his job would be opening up, Emanuel quickly flew back and rented out a new temporary abode, but it was too late; for half the requisite year of Chicago residency, Emanuel was unmistakably a resident of Washington, D.C.
Now, one could argue that he should have just known he couldn’t run, so he should never have bothered to start this fiasco in the first place. But apparently, he got some bad legal advice, so he believed the residency requirement wouldn’t apply to him. He filed anyway.
The system kicked in. First the system checked his petition packet; there appeared to be enough, with no documents missing. Then they opened it up to challenges, and some challengers came forward. There was a hearing by a hearing officer (Joseph Morris, Esq), then a judgment by the City Board of Elections, then it went before a state judge, then before a state appeals court, and then the final step is the state supreme court, if it takes the case (it could then, conceivably, move on to the federal courts, but this is doubtful, as federal courts generally leave such cases to the states to handle).
Now we have voters – or puppets, or ringers, hard to say which – standing on street corners in the Loop, hoisting picket signs and chanting “Let the People Decide.”
What do they think has been going on all along?
A nation of laws.
Even in Chicago – believe it or not – we must abide by the law. The Illinois election code says that a candidate must have “resided in the municipality at least one year next preceding the election.” And Rahm Emanuel plainly hasn’t. But rather than just toss out his petitions (which might have been kinder in the end to everyone except the broadcast media and local political consulting community who’ve profited from his campaign), the Board of Elections let him run, and let him defend his position in the courts.
Rahm Emanuel says that he was given legal advice that if he transformed his home into an investment by renting it out, he wouldn’t lose his own residency status, even though his plan was to reside seven hundred miles east-southeast for the next few years. He probably didn’t expect the current Mayor to retire as soon as Emanuel was demonstrably half a year unqualified to succeed him.
The Board of Elections, and even the first judge to hear the case, accepted this theory, positing creatively that legal residency is a state of mind, a matter of philosophical intent, rather than a geographical location (how amazing that neither Blackmun nor Pelosi were involved).
The much more grounded appeals court decided that residency requires a residence in which one resides, and that it must be located within the boundaries of the jurisdiction for which one seeks an office. Reasonable, no?
The Beltway’s candidate for Mayor of Chicago points out that there is a clause in the Illinois code allowing for servicemen to vote from their home district so they don’t lose their right to vote by virtue of being stationed overseas. The clause doesn’t specifically except federal civilian bureaucrats from this provision, but it doesn’t clearly include them either.
A case can be made that this clause should be thoughtfully examined, and it has been. But when context is taken into account – the clause was inserted during WWII – one sees that it was obviously written with the military in mind. And when the illogic of an unlimited interpretation is considered – if it applies to nonmilitary, then any federal bureaucrat could always run for office from Illinois, no matter how many decades he’s been putting down roots elsewhere – it becomes abundantly clear that the insanely broad reading required by the Beltway candidate cannot possibly have been the intention of the authors. The appeals court correctly determined that to be a resident of Chicago, you have to actually reside in Chicago.
As the Beltway candidate’s minions wail that we must Let the People Decide, they forget what the people have already done, and continue to do. The people voted for the legislators who wrote the election code. The people voted for the state’s constitution, which set up this court system. The people elected the mayors and city councils who appointed the boards of election. The people elected the judges who have adjudicated the case thus far, and also the justices who will hear it if it goes to the Illinois Supreme Court.
So, in our system, the people have indeed decided. Whatever happens, both the imperfect statutes at issue, and the jurists who interpret them, are all the result of a century of decisions by the people. Some decisions may be more or less direct than others, but nevertheless, every stage emanates from the people, through our wonderful system of representative democracy.
Could it be better?
To be fair, we must admit that modern times provide more potential exceptions than either the Framers or their heirs have yet provided for (in Illinois law, at least).
If a person owns a main house in Chicago and a summer home in Vermont, or a winter condo in Florida, surely he could only seek office at the place in which he spends most of his time. And if a person is serving abroad with the military, then surely he can return to run for office from his family’s home.
- But what of the entrepreneur with far-flung holdings, who spends equal time at his residences in Chicago, New York, and Los Angeles?
- What of the college student who still has a room at his parents’ Chicago home, but has spent seven years on an endless quest for a degree out of state?
- What of the actor who spends equal time in his condos in Chicago and Hollywood?
- What of the musician who spends equal time at his homes in Chicago and Nashville?
- How do we determine the primary abode, the one from which he can run for office, and how much of a choice should the individual have in the matter, vs. what lines should be drawn in the sand by a thoughtful legislature?
And yes, eventually, we should look at the person who gives up his Chicago residence completely to take a federal job. Should an exception be carved out for him? If so, for which jobs? Only for working as political aides to a Member of Congress? Or for the President too? What if they switch from political posts to Hatched civil service posts? The executive branch has millions of employees, which ones should enjoy this marvelous exception? Once granted, how shall the exception be limited, and for how long? For one year? For two? For one term? For ten?
There are plenty of changes that could be made, justifiably, in light of the different world of today. But not by judicial fiat, not by a board of elections afraid of repercussions, not by a candidate so mad with power that he believes himself above the law. Such changes as discussed here could be made, later, to be applied to future elections. But not retroactively. Under the law as it stands today, Rahm Emanuel must stand down.
In the end, we must rely to some extent on the original intent of the authors of the existing law, and encourage today’s legislators to update it. Clearly, Illinois’ framers believed that the voters should choose from their neighbors: fellow citizens whose shared experience is critical to a successful administration. Our elected officials, once in office, can hire anyone they want to most of the appointed offices; people from the other end of the country, even from across an ocean.
The current restriction is just on the officials themselves – one year actually in the state before the election. That’s one year to experience the city first-hand, close up. One year to trod the sidewalks and alleys, to drive the streets, to talk to neighbors, to belong to civic groups. One year to be a Chicagoan – one recent year, the current year – before asking the voters for a chance to rule Chicago. Is that really too high a price for such a plum? Is it really too much to ask, especially of a city in which the firemen, the teachers, the policemen, all must live in Chicago to hold their jobs?
Should we be surprised?
Part of our problem, surely, is that we expected the residency rule to be applied in the first place. It’s our fault, we’re told – Rahm Emanuel is special; he’s the ambassador from the Obama Administration, the member of the power elite willing to favor us with his talents. He served as a Congressman from here, after all, how could a little thing like moving seven hundred miles away cost him his God-given right to run for the office of Mayor?
There’s a point to it, ‘tis true. The application of election law has been sporadic, to say the least. We allow non-citizens to vote, and people who’ve moved away years ago, even people who’ve been deceased for decades. Heck, we allow people who’ve never existed, the fictional creations of a registrar’s fevered imagination, to vote not once, but two or three times. What precedent is there for following any laws anywhere in Illinois, much less in Chicago, the very heart of the beast?
Well, strangely enough, this is the one area where it is expected. Illinois has a record of the most shocking technicality expulsions of candidates. A missed form, a mis-numbered page, too few petition signatures, even too small a font on critical information, have caused more deserving candidates than the Beltway Blasphemer to be ejected from the ballot. He should have known what he was in for.
So, no, perhaps we shouldn’t be surprised that the power elite expected an exception from the law. But turnabout is fair play. After a lifetime of disobeying the Constitution, a Washington career of voting for regulatory overreach unimagined by Framers who expected the public to hold their legislators to a higher standard, at long last this denizen of the Potomac Basin is being held to the letter of the law.
If only we could get our courts to respect the Commerce Clause and the Tenth Amendment as this courageous appellate court showed their respect for Illinois’ residency requirement this month. Oh well. Baby steps, friends, baby steps.
Copyright 2011 John F. Di Leo
John F. Di Leo is a Customs broker and international trade lecturer. He is not a lawyer, so this does not constitute legal advice. His degree is in political science, so his arguments admittedly do sometimes have the drawback of having been considered rationally rather than legalistically.
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