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Wednesday, January 26, 2011

Emanuel Should Stay On The Ballot

Rahm Emanuel should stay on the Chicago mayoral ballot, under a principle known as domicile.

Emanuel, former Obama chief of staff, was recently removed from the ballot, pending a stay and appeal. He was removed on the basis of having ceased to reside at his Chicago house upon resigning his Congressional seat to join the Obama Administration in January 2009. A Cook County appellate court (despite ruling to remove him from the ballot) recognized he still owned and in which family members and household items remained. He paid property taxes there and maintained his driver's license at that address. He leased out the house for a 22-month period to end on June 30, 2011. Indeed, that court recognized (see pages 15-16 of its ruling) that Emanuel was qualified to be an elector, that is, to vote in the mayoral election. Yet, he was ruled ineligible to be a candidate in that same election, on a decision that parses the difference between elected officials (Congressmen) and administration officials like Cabinet members (see page 22).

These facts indicate that Emanuel intended to return to that house -- in 2011, no less --and that his "departure" was intended to be brief and temporary. In short, under the principle of domicile (recognized by New York election law), Emanuel never intended to "leave" that house.

I draw a parallel to someone taking an extended vacation. Should someone who takes a vacation -- or a presidential cabinet position (an inherently short-term gig, or temp job) -- lose his residence?
The court distinguishes between domicile and residence. Perhaps legislative intent recognized this distinction, but it is more likely this loophole was never envisioned.

When residency (or domicile) requirements are so often circumvented by candidates looking for a favorable district in which to run, it seems a shame -- whatever you think of Emanuel as a politician -- to exclude a bonafide, apparently genuine Chicago homeowner from the ballot when so many others are evidently not bonafide long-term "residents" of the districts in which they seek election.

Either way, expect quick legislative action to remedy this problem.

Eric Dixon is a New York election lawyer. He can be reached at edixon@NYBusinessCounsel.com and 917-696-2442 for comment.

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