Make Sense, Be Honest: Emanuel’s Ballot Access

24 01 2011

(cross-posted from GB)

There’s a lot of political schadenfreude going around in reaction to an Illinois Appellate Court decision to remove Rahm Emanuel from the municipal election ballot. A local objector filed suit to prevent Emanuel’s candidacy, with the argument that Emanuel failed to meet the requirement that candidates for local office in Chicago both be a qualified elector (i.e., voter) and have “resided” in Chicago for a year before the election.

The latest turn in Emanuel’s on-going legal troubles in getting on the ballot was a shock to many (but not all), and has naturally led to indignation at the injustice done to voters (i.e., “Let the voters decide!”) and the justice of the universe (“He’s buying the election! He failed to meet the letter of the law!”)

I implore everyone to take a breath and consider their arguments outside of the election fight context for this one instance; in a post-Bush v Gore society, we can’t afford any more “I’ll cheer when it helps and screech when it hurts” approaches to legal decisions like this.

The Opinion and Dissent

The decision was split 2-1. The majority opinion is seductively argued. Basically, they build upwards from the idea that the Chicago election law is conjuctive and not disjunctive–in other words, it is an “and” not an “or.” Where there is an “and” in a statute, that means that two distinct, non-redundant elements are necessary. The two elements in question here: (1) Is candidate a qualified elector? and (2) did candidate “reside” in Chicago for a year before the election?

The majority finds that he meets the first element but fails the second and, therefore, fails to qualify. The reason he fails the second, they argue, is because the legislature must have intended “reside” to mean something different from merely “have a voter-qualifying residence.” Here they draw a distinction between “constructively” residing (think of this as “residing as a matter of law”) and “actually” or “factually” residing (think of this as “residing in the common sense”). Emanuel’s attorneys anticipated this problem by arguing that he meets an exception to this requirement as he was away due to business on the behalf of the United States–typically considered a “service member” exception, i.e., you don’t want soldiers to lose their residency because of their military service. However, the majority doesn’t think this applies to candidacy but rather only to voting. Citing a case called Ballhorn, the majority holds in other words that legislators wanted candidates to actually live in a place in order to represent it:

Those [residency] requirements ensure “that those who represent the local units of government shall themselves be component parts of such units.”

This intent of the legislature moved the majority to find that Emanuel failed to meet the intent of the legislators in creating these requirements. The majority is concerned, so they say, about the rules of “statutory construction” which require them to respect the legislature’s intent in writing laws. One of the basic rules of statutory construction is that courts shouldn’t assume words are superfluous or redundant, and that if something was included, it was included for a reason. If the legislature had merely wanted candidates to be qualified voters for a year prior to elections, rather than qualified voters who also resided in the district for a year, then they would not have made a distinction.

Importantly, the majority did not give a Rule 316 certification, meaning basically that they added a hurdle to Emanuel’s appealing their decision. Had they given the certification, it would have gone straight to the Supreme Court.

The dissent is raucous, and accuses the majority of “flights of fancy,” of inventing law out of whole cloth, and of disenfranchising voters. The strident tone and lack of congeniality is rare for appellate court decisions. The anger is palpable in the decision, and that unfortunately detracts from some of the better arguments. In particular, the dissent says that as the majority stated that there were no precedents that clearly guided their decision making, they were creating new rules and standards, and therefore their opinion should have been prospective rather than retroactive, and should have been sent back to the Board of Election Commissioners. This could very well be the argument that the Supreme Court adopts if it overrules the Appellate Court–if the majority is creating a new rule based on a lack of precedent, how could Emanuel have possibly conformed to it? The dissent also points out that, in sticking with statutory construction, the judges should have assumed that legislators used the word “resided in” rather than “lived in” exactly because they wanted it to carry the same meaning for candidates as for voters.

One interesting thing about “residence” and “resides.” Although it seems like they’re two different parts of speech of the same root–if you have a residence somewhere, you reside there, noun-verb–they don’t need to be. In fact, in a recent oral argument before the Supreme Court, this very issue came up. In considering whether a corporate “person” could possibly have something like “personal privacy” rights, Chief Justice Roberts said:

I tried to sit down and come up with other examples where the adjective was very different from the root noun. It turns out it is not hard at all. You have craft and crafty. Totally different. Crafty doesn’t have much to do with craft. Squirrel, squirrely. Right? I mean, pastor–you have a pastor and pastoral. Same root, totally different.

Nevertheless, the dissent is compelling and in their response to the majority opinion, Emanuel’s attorneys rely heavily on the dissent’s arguments.

What About the Poor Voters!?

The Emanuel camp organized an impromptu “protest” at the Board of Elections to demand Rahm get on the ballots, which are going to print shortly, and his staffers have been pushing the idea, echoed by a silly Sun-Times editorial, that the decision has “dis-enfranchised” voters by taking away one of their options. This is ridiculous.

But before getting to why, I’d like every reporter in this city who is internalizing this to ask Emanuel and his staffers if Barack Obama disenfranchised voters when he was first elected to the state Senate by kicking off Alice Palmer based on technical mistakes on her ballot petitions. I want Rahm Emanuel himself to be asked that question and to answer it. The intellectual dishonesty of political campaigns is to be expected–they’re paid to fight their hardest for their guy–but that doesn’t mean we should just pretend it isn’t intellectual dishonesty. When Obama was criticized for his treatment of Palmer, my sense is that once-Obama communications chief and current Emanuel communications chief Ben LaBolt probably didn’t buy it.

The judges are not disenfranchising voters. They are applying the law as they understand it. Maybe the law disenfranchises voters, but they weren’t asked to invalidate the law. Emanuel’s campaign didn’t argue that the law was unconstitutional. They were asked to rule on whether Emanuel qualified as a candidate. That’s why we have these laws.

Who wrote these laws? They were written by legislators elected by voters. How is it not disenfranchising voters to have judges ignore the laws they wrote? Also, wouldn’t it be disenfranchising voters to allow unqualified candidates to access the ballots? How are voters’ interests served in that way?

None of this is to say that the majority opinion was correctly decided; that’s besides the point. But I hear very few people offering counter-arguments to the majority. What I hear and read are slogans about “disenfranchisement” and “the right to choose.” The question is: do we agree with the restrictions as they exist, and the tests to determine whether those restrictions have been met? If we do–and I think in terms of residency, they are reasonable–then the debate should be about whether the majority correctly read the legislative intent and whether their opinion constitutes a new rule that Emanuel could not fairly have been expected to meet (as it didn’t exist).

Also, these editorial boards have some nerve talking about judges disenfranchising voters. How much coverage are they giving to Patricia Watkins or Dock Walls? Are they invited to their endorsement sessions? For all practical purposes, the media makes the most important decisions on behalf of voters: who is worth their time to consider. At least someone elected these judges.

Hey, Thems the Rules!

The rule is that to be qualified to run for mayor, you need to be a qualified elector and have resided in Chicago for a year prior to the election. Okay. Start there. Is that fair?

If yes, then the next question is, “What do you think the word ‘reside’ means when it comes to candidates?”

If you think, “It means that they can vote there,” then, yes, Emanuel is qualified.

If you think, “It means that they’re actually part of the community; that they actually live here,” then, no, Emanuel is not qualified.

Those jeering at Emanuel risk something: wider ballot access. The majority does seem to be adding a twist to the issue by adding–or clarifying–this factual residence rule, and it could be something that is used in the future to rule a candidate out unfairly. Say you want to run for alderman, but for a few months last year, you were in Texas working on a contract for your employer. Or you went to stay with sick family in Massachusetts and had your mail forwarded. Or you moved in with your boyfriend in Edgewater briefly but broke it off. Should these things disqualify you? They potentially could. There is a reading of this opinion that could lead to more restrictive rules for ballot access.

I don’t think Rahm Emanuel cares about wider ballot access in principle; he cares about it when it affects Rahm Emanuel. Be that as it may, progressives, who typically agitate for wider ballot access, are looking at a situation where a court may retroactively apply a rule that potentially didn’t exist to disqualify a candidate, and on grounds that add another wrinkle to the entire ballot access equation. Do they want to be on record cheering for that?

In Summation

Take it easy.



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