Breaking: Rahm back on ballot

posted at 1:27 pm on January 25, 2011 by Ed Morrissey

The Illinois Supreme Court has ordered a stay of yesterday’s appellate court decision that struck Rahm Emanuel’s name from the mayoral ballot — and not a moment too soon, as the NBC affiliate in Chicago explains.  The city will print ballots today, which means that voters will see Emanuel’s name on the list even if he is later disqualified:

The Illinois Supreme Court has granted Rahm Emanuel’s stay. Which means he’s back on the ballot.

Earlier today Emanuel’s spokesman Ben Labolt said the mayoral candidate had plans to turn to the U.S. Supreme Court if he didn’t receive a favorable ruling from the state.

The NBC report says that the challenge to the US Supreme Court would have relied on a First Amendment argument for federal intervention.  That seems like an unlikely strategy for a couple of reasons.  First, there isn’t a free speech or free exercise of religion or political action involved in setting residency requirements for either voting or running for office.  Second and more generally, federal courts like to give as much leeway as possible for states to set those requirements, and usually any interventions that do occur come through 14th Amendment due-process violations and not First Amendment issues.

The decision does give a hint that the state supreme court sees the possibility of overturning the appellate decision on residency.  Otherwise, they wouldn’t have bothered with the stay.  However, it’s a low-cost decision that leave all options open, and that makes a stay a bit of a no-brainer.  The city can advise its voters that Emanuel has been disqualified if the court later upholds the decision, but without a stay, the city would have to reprint all of the ballots and delay the election if the court overturns it.

I’d guess that the court is going to lean towards leaving Emanuel on the ballot, and kick the question back to the legislature to more closely define residency in the future.

Update:  The updated version of the story at the link has dropped the reference to a First Amendment challenge, still noting that Emanuel’s team planned to go to the US Supreme Court.  Here’s video of Emanuel discussing the appeal today prior to the news:

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“The decision does give a hint that the state supreme court sees the possibility of overturning the appellate decision on residency. Otherwise, they wouldn’t have bothered with the stay. However, it’s a low-cost decision that leave all options open, and that makes a stay a bit of a no-brainer.”

No, the order issued by the court doesn’t really hint at any such thing.

It merely recognizes (correctly) that a decision on the merits . . . which ever way it may go . . . requires the imposition of a stay at this point.

Otherwise, if following consideration of the briefs and perhaps a “review” of the oral argument at the appellate court level, the Court decided on behalf of Rahm Emanuel but he had been excluded from the ballot, he would have no recourse other than to challenge the ultimate results of the election, which would have much more serious Constitutional consequences for all concerned.

And, from the Fox story:

“The Illinois Supreme Court also granted Emanuel’s motion to have the case considered in an expedited fashion but did not set an immediate time table for the appeal. The court said it would not take any additional briefs nor would it hear oral arguments.” (my emphasis added)

That is true. In addition to granting the stay, the Illinois Supreme Court in it’s order also expressly stated:

“This Court is taking the case on the briefs filed by the parties in the appellate court. No additional briefs will be filed in the Supreme Court. Oral argument will not be entertained.”

That does not bode well for Rahm Emanuel. Not at all.

Trochilus on January 25, 2011 at 9:20 PM

Well, I knew that was too good to last. I guess, deep in my heart of hearts, I knew that he was going to be on the ballot. After all, he is a Democrat, a liberal Democrat, and we all know that the laws and rules don’t apply to liberal Democrats. Especially in Illinois, and most especially in Chicago. So, of course he will be on the ballot and will attain the mayor’s seat to which he, as a liberal Democrat, is entitled. He will demonstrate once again that election laws don’t matter unless you are going after a conservative Republican. After all, we still have Lautenburg in the Senate after that sorry spectacle with the NJ Supreme court ruling that, “Yeah, the law says you can’t change the ballot 90 days before the election, but hey, it wouldn’t be fair not to have a Democrat on the ballot, so we don’t care what the law says.”

AZfederalist on January 25, 2011 at 9:49 PM

That does not bode well for Rahm Emanuel. Not at all.

Trochilus on January 25, 2011 at 9:20 PM

The appellate decision basically telegraphed that they had no choice but to rule as they did because they had no rulings from the supreme court to follow to go along with several lower case rules that went in favor of residence without further comment. That makes it clear the appeals court expects that the supreme court would overturn them. The fact that no further briefs will be accepted confirms that.

pedestrian on January 25, 2011 at 11:41 PM

pedestrian on January 25, 2011 at 11:41 PM

No, the terse order from the Illinois Supreme Court merely means that they will review the decision of the appeals court, based only on the briefs filed at the appellate level and a review of the oral argument (transcripts and/or audio) made at the appellate level.

In other words, Rahm Emanuel is not getting a “second bite of the apple.” He can make no new arguments, written or oral, and his legal team cannot address, or attempt to persuade the Illinois Supreme Court, that there is a way to distinguish the reasoning of the appellate court majority decision.

Since he lost at the appellate level, that is simply not a good development for him, and explains his public assertion that if he loses, he will try to appeal to the United States Supreme Court.

The USSC, however, would be very unlikely to overturn the Illinois Supreme Court on such a ruling, in the absence of a clear showing of a United States constitutional infirmity. In the absence of such a showing, it is simply a matter of the Illinois Supreme Court having the final word on the construction of the Illinois statute.

Again, he would win in the Illinois Supreme Court if a majority of the panel decided to adopt the reasoning of the dissent at the appellate level. That could happen, but I cannot see how their decision to severely limit the scope of their review can be read in a way that provides a basis of hope to Rahm Emanuel.

Trochilus on January 26, 2011 at 6:10 AM

Actually, it’s to the advantage of most of us if Rahm becomes the next mayor of Chi-town. WHOEVER gets elected will be a corrupt liberal, anyway; so for the people of Chicago it doesn’t really matter. And if he’s mayor of Chicago, the rest of the country might be spared having to see or hear him so much.

RegularJoe on January 26, 2011 at 10:45 AM

Even Chicago Trib columnist John Kass quotes Charles Dicken’s Mr. Bumble on the point. As much as Kass says he hates that law, he recognizes the reality:

“But yes, Mr. Bumble, the law is indeed an ass, at least sometimes. The law says Rahm should not be on the ballot, and I happen to think Rahm should be on the ballot.

But the infuriating thing about the law is that it is not flesh and blood. It’s no friendly consultant or dynamic political overlord. The law is dry, without personality.

And whether it fits your politics, whether it hurts your favorite mayoral candidate, it is the law.

It is the law even if it helps those other candidates.

The law in Illinois is absolutely unambiguous in the matter concerning Emanuel’s candidacy.

A candidate must reside in Chicago for a year prior to the mayoral election. There’s nothing complicated about it. It’s been the law since 1871.”

Of course, that “nettlesome” 1871 law could have been amended at any time since, but it has not been. If he loses here, Rahm may call in some chits in order to try to get it amended so he can then mount a “write-in” campaign.

And, if Rahm Emanuel truly believed there was a legitimate basis for that law being interpreted in the manner he now urges, he could and probably should have sought a Declaratory Judgment at any time in the past year or so (or he could have probably even figured a way to have a surrogate do so for him) in order to get a favorable ruling to determine the parameters of his situation vis-à-vis the scope of the statute. If a court had so ruled favorably, he would not now be in the position of having to irresponsibly disrupt the electoral process the way he is. If they ruled against him, he could have tried to get an amendment passed in the Illinois legislature, even before last fall’s election.

But he did not do any of that.

Instead, he expected to waltz back into town and bring the court and electoral systems to a halt, all to accommodate his needs.

Trochilus on January 26, 2011 at 12:37 PM

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