Legal Commentary

Illinois Appellate Court Holds Rahm Emanuel Isn?t Eligible to Run for Mayor of Chicago

By Eugene Volokh

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.

Full post as published by The Volokh Conspiracy on January 24, 2011 (boomark / email).