In a 2 to 1 state appeals court decision, an Illinois appeals court today kicked Rahm Emanuel off the ballot for Chicago Mayor. The opinion is here. Rahm has already filed for an emergency stay in the Illinois Supreme Court and says he's confident he will prevail on an appeal to that court.
While I don't care to see Rahm get elected Mayor of Chicago, I think the appeals court got it wrong. One thing I remember from law school (domestic relations class) is the difference between being a resident and a docimile of a place. We were taught: a residence is where you hang your hat and a domicile is where you hang your heart. The court in Rahm's case acknowledges that residency and domocile are not the same thing, but it says residency is your permanent abode while domicile is where you intend to make your home. But I think it twists the case law.
From People ex rel. Madigan v. Baumgartner, 355 Ill. App. 3d 842, 847-848 (Ill. App. Ct. 4th Dist. 2005)(cited by the court but not referring to these quotes):
"Where a person leaves his residence and goes to another place, even if it be another state, with an intention to return to his former abode, or with only a conditional intention of acquiring a new residence, he does not lose his former residence so long as his intention remains conditional." Pope v. Board of Election Commissioners, 370 Ill. 196, 201, 18 N.E.2d 214, 216 (1938). To change residence, "there must be, both in fact and intention, an abandonment of the former residence and a new domicile acquired by actual residence, coupled with the intention to make it a permanent home." Welsh v. Shumway, 232 Ill. 54, 77, 83 N.E. 549, 559 (1907).
....Because a person may only have one residence for voting purposes, when a person has established a physical presence in two locations, he must make a decision about which location he intends to make his permanent residence. Implicit in the residency requirement of intention to make a place a person's permanent home is the ability of that person to choose whether he wishes to exercise the rights afforded to a permanent resident in his new location or if he wishes to continue his residence at the home he has temporarily left. As long as he does not seek to "exercise the rights of property or of citizenship incident to or resulting from permanent residence" at his new location but instead continues to exercise those rights, including the right to vote, at his original location, he remains a resident at the original location.
The Court states Rahm continued to keep his driver's license, his voting registration, even the address on his personal checks at his Chicago address. So how is he not a resident of Chicago?
I have no idea what the Illinois Supreme Court will do, but it needs to decide fast because absentee ballots are about ready to hit the printers.
