The Rahm Ruling 

The appellate justices took on a thankless job, and no thanks is what they got.

Rahm Emanuel

Rahm Emanuel

Mary Naset

Given Chicago’s troubles and the need for a fresh approach, the residency requirement for candidates seems backwards: candidates shouldn’t have to prove that they’ve lived here for the last year, but that they haven’t set foot in the city during that time.

But the law is the law, and sometimes there’s even logic behind it—though you’d never suspect that from the reaction of the city’s editorial boards and pundits to a ruling that displeases them, such as Monday’s appellate court decision that momentarily bounced Rahm Emanuel off the mayoral ballot.

The Illinois Supreme Court Tuesday ordered the Chicago Board of Election Commissioners to restore Emanuel’s good name to the ballot, and agreed to hear his appeal of Monday’s ruling and decide the case quickly. Considering the melodrama thus far, the U.S. Supreme Court will probably weigh in any day now, and then the United Nations. Meantime, the election board is searching for a supplier of erasable ballots.

Monday could have been viewed as a bright day for American democracy. Cynics are forever pointing to the shortcomings of our government—and especially to how the rich and powerful are above the rules. Along came a panel of three appellate justices to deal with a case involving a multimillionaire who’s lately been among the nation’s most influential citizens. He’d now like to purchase the mayor’s office, for which he’s already raised a good-faith sum of $12 million. Only a silly residency rule stands in his way. By a vote of two to one, the appellate panel ruled against him.

Maybe the residency rule should indeed be changed—but that’s a job for legislators. The task of appellate justices is to deal with the law as it is, not as people wish it were. The 25-page opinion of the two majority justices shows them wrestling with the intent of legislators long dead, and with relevant court cases from more than a century ago. If the might of the person at the center of the case helped him or hurt him with the justices, there’s no sign of it in the opinion.

But the editorialists saw only darkness. Aware of the press’s crucial role of comforting the comfortable, they rushed gallantly to the defense of the $12-million man.

The Tribune blasted the “startling arrogance and audaciously twisted reasoning” of the majority justices, who’ve been on the appellate bench a combined 28 years and have fine reputations. The Trib favored the opinion of Bertina Lampkin, an appellate justice for 16 months, who in her dissent lamented that the ruling “disenfranchises not just this particular candidate but every voter in Chicago who would consider voting for him.”

The Sun-Times noted that Emanuel was “far ahead in the race for mayor in every poll”—as if that should have been a consideration in the case. If the ruling stands, the Sun-Times warned, the two appellate justices in the majority “will have decided that you, the voters, cannot choose Emanuel to be your next mayor—tough luck, folks.”

It was touching to see this concern about imperious judges disenfranchising voters. The task of sapping the muscle of the electorate is usually left to the big campaign donors, and the editorial boards themselves.

James Warren, the Chicago News Cooperative columnist, joined the blustering brigade. He ridiculed the ruling in a post for the Atlantic that was initially headlined “Why the Court’s Rahm Emanuel Decision is Worse Than You Think” (assuming a fact not in evidence, as the lawyers say). “Emanuel, the clear front-runner, can vote for mayor on Feb. 22 but he can’t run for mayor,” Warren wrote. “Sound really dumb? It is really dumb.” It is ironic—but is it dumb? As the majority opinion noted, the state constitution of 1870 seems to have set a higher residency standard for a candidate than for a voter. (Voters didn’t lose their right to vote if they’d been out of their district on “business of the United States,” but there was no equivalent exception to the residency requirement of candidates.) The majority justices found a rationale for the candidate-residency rule in a 1901 case, which noted that residency exposes a candidate to “the wants and rightful demands of his constituents.”

Warren blamed the ruling on the state’s “highly politicized court system, where a small army of patronage hacks and mediocrities populate the bench in an elective, not merit-selection, system.”

Judicial selection in Illinois is indeed too politicized. But Justice Lampkin, and the circuit judge who originally upheld the ruling of the Board of Election Commissioners, are products of the same politicized system. Does that taint the conclusions they reached in Emanuel’s favor?

Justice Thomas Hoffman, author of Monday’s opinion, has been a judge for 26 years, an appellate justice the last 17. The Chicago Council of Lawyers—the toughest group in town in judging judges—has through the years called him “one of the finest judges,” “fair, intelligent, and hard-working,” with an “excellent” knowledge of the law, and integrity “beyond reproach.”

Joining Hoffman in the majority was Justice Shelvin Louise Marie Hall, a judge for 19 years, the last 11 on the appellate bench. The CCL has found her “bright and well-prepared,” “fair,” “hard-working,” with “unquestioned” integrity, “excellent” judicial temperament, and a “broad range of legal experience.” Before she became a judge she had been general counsel for the Illinois Department of Human Rights for eight years.

Clearly a pair of patronage hacks and mediocrities.

Up to this week, Emanuel has been cleverly capitalizing on the challenge to his residency, as one of his opponents, $110,000-man Miguel del Valle, observed Monday. “It gets him sympathy votes,” del Valle told me. “He knows it, and he’s playing it well. He’s now a victim.”

It may be a healthy brain-stretching exercise to picture Emanuel as a victim—like imagining Sam Zell as Little Orphan Annie. But Emanuel surely didn’t intend victimhood to go this far. As he’s learning, it’s much better to be a virtual victim than a real one.

But if the supreme court rules for him, he’ll become ever more formidable—the candidate who overcame the wicked efforts of rivals and meddling judges to keep him out of the race. It may be enough of a boost to get him the majority he needs on February 22 so he needn’t fuss with a runoff.

“Emanuel has raised about $12 million so far, dwarfing the entire field, but must now rely heavily on just crossing his fingers,” Warren dourly concluded his Atlantic post.

Before Monday’s ruling, he could have beaten the rest of the field with one arm tied behind his back. It won’t kill him to have his fingers crossed for a few days.

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