The Rahm problem

Larry Ribstein —  25 January 2011

This is a little off-topic, but it’s about Chicago, my home town.  I haven’t lived there for 35 years, but I have family there, favorite restaurants, and go there a lot.  I am currently away on government service (teaching at a state university).  But I couldn’t vote or run for office there, even if I wanted to.

Anyway, you can probably tell I’m warming up to talk about Rahm Emanuel.  The Illinois appellate court has opined that he hasn’t resided there for the last year, and so must be excluded from the ballot despite raising $11 million or so. 

The WSJ has its own opinion:  “[W]e don’t think Mr. Emanuel should be penalized, or Chicago voters denied the chance to vote for him, because he chose to serve his country.” 

Excuse me, but could I be forgiven for thinking that a career politician’s decision to serve as the president’s chief of staff does not exactly make him Pat Tillman?

Let’s try another solution:  the law.  The majority opinion in the appellate court makes a pretty good case that (1) even if Emanuel’s a legal resident for voting purposes he has not physically resided in Chicago for the last year, as the statute arguably requires of candidates; and (2) the exception for service to the US applies only to voters and not candidates.  (The dissent’s best argument is that there’s no clear statutory standard for physical residence.  But even Emanuel would have to admit he didn’t physically reside in Chicago for the last year whatever the standard is.)

So the Democrats have their own Bush v. Gore.  Once again we’ll learn what laws are for.   Sometimes even the WSJ needs to be reminded.

(Full disclosure:  Carol Moseley Braun, Emanuel’s closest competitor, is an old friend and law school classmate and I contributed to her Senatorial campaign. But she has had nothing to do with this post.)

Update:  The Illinois appellate court ruling was stayed by the supreme court for purpose of hearing an appeal.  Also, see election law expert Rick Hasen’s Slate criticism of the appellate court’s decision.  Although Hasen’s the expert, I am not persuaded because I don’t think Hasen adequately addresses the key distinction the court made between legal residence and physical domicile, or the appellate court’s policy rationale for distinguishing candidates and voters.  Not that these fine distinctions will matter to the Illinois supremes.

Larry Ribstein


Professor of Law, University of Illinois College of Law

4 responses to The Rahm problem


    The citizens of Chicago would be absolute idiots if they did not vote for Carol Moseley Braun. Her record in the US Senate speaks for itself, and far exceeds anything Rham did for citizens, unless you consider corporations citizens as Rham obviously does.


    I’m no con law scholar, but shouldn’t this kind of thing be prohibited by the privileges & immunities clause (and perhaps even the dormant commerce clause)? Political entrepreneurs should be able to set up shop wherever their skills & knowledge would be most valuable; local politicians shouldn’t be able to lock out talented newcomers/competition; and voters are best positioned to decide whether the newcomer represents their interests adequately. In Ribsteinian terms, it’s an obstruction to the law market — entrepreneurs can’t choose the set of rules they prefer. I mean, how is this different than a protectionist tariff?


      Actually, local politicians lock out newcomers all the time, so the law market doesn’t operate perfectly fluidly. The dormant commerce clause offers only very slight resistance (I discuss this in The Law Market and other work). I haven’t studied the application of p & i in this context, but clearly many types of residence requirements have been upheld.


    1. They are all liberal Democrats.

    2. The law seems at best ambiguous to me.

    3. The Illinois Supreme Court still has a say on this.

    4. The real question is who owns the Illinois Supreme Court? and what does he want to see happen?