Weeks ago, when most people thought that the challenge to Rahm Emanuel’s residency status was a lost cause, Northwestern Law Professor Sam Tenenbaum dissented. He reminded me of that today when I called him for his reaction to the Illinois Appeals Court ruling that Rahm is ineligible to run for mayor because he does not meet the residency requirement of having lived in Chicago for a year prior to the February 22nd primary.
“I told you [the challenge] wasn’t frivolous,” said Tenenbaum, a clinical associate professor of law, whose specialty is civil litigation.
Emanuel’s lawyers have already said they are appealing to the Illinois Supreme Court. So I put a new set of questions to the professor.
Does the Illinois Supreme Court have to take the case?
“The Illinois Supreme Court may not have to take the case. Normally, it is purely discretionary on their part. There are two exceptions that may apply: First, if the Appellate Court grants a certificate of importance [i.e. the case is of public importance], then it is appealable as of right. Second, if there is a state constitutional issue that arises for the first time, it is also subject to appeal. It is unlikely that the court will not hear the case given the clear public interest, but stranger things have happened. If the court takes the case, it will be expedited.” [Early voting starts a week from today, on January 31st.]
What happens if the state Supreme Court declines to take the case or affirms the decision of the appeals judges that he cannot be on the ballot—and that would also mean, says Tenenbaum, that Emanuel would not be eligible to be a write-in candidate—can Rahm take his case to the U.S. Supreme Court?
“The only way to get to the U.S. Supreme Court is through a petition for certiorari, and [Rahm] would have to raise a United States Constitutional issue,” Professor Tenenbaum said. “I have not seen one, although he could try and argue that if residence has one meaning for voting purposes [Rahm has consistently voted here] and another for candidacy, it denies equal protection, but that would probably be a stretch.” [I wrote on that subject in late December.]
(Also in December, I raised with Professor Tenenbaum the question of whether Illinois Supreme Court Justice Anne Burke would have to recuse herself, since her husband, Alderman Ed Burke, supports Rahm’s most serious opponent, Gery Chico. “I don’t think the canon of judicial ethics would require that,” Tenenbaum said at the time, because her husband is not “a party to the challenge.”)
So, lots of uncertainty here, but one thing is clear: The ruling has thrown the mayor’s race on its head. The ballots are about to go to press, and the decision would appear to preclude putting Emanuel’s name on them. Suddenly pundits—not to mention Emanuel’s opponents—are beginning to think the previously unthinkable: Mayor Chico? Mayor Moseley Braun? Even Mayor Watkins or Mayor Del Valle?
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