LAW REVIEW 1113 (REVISED)

Military Voting in 2011 Chicago Mayor Election

By Captain Samuel F. Wright, JAGC, USN (Ret.) 

7.0—Military Voting Rights

In Law Review 1113, as we originally published it on our website, I asserted that overseas military personnel were likely disenfranchised in Chicago’s 2011 mayoral election, because a lingering dispute about the eligibility of Rahm Emanuel (the eventual winner) was not resolved by the Illinois Supreme Court until just 28 days before Election Day.  When I wrote the original version of this article, I was under the impression that the absentee ballots had not been mailed until the state’s highest court finally decided the eligibility question.  The Chicago Board of Election Commissioners has pointed out that I was in error.  In fact, the absentee ballots went out in early January, more than 45 days before Election Day. 

I apologize for any hurt that my error may have caused.  We removed the original version of the article, and we are publishing this revised article as a retraction, an apology, and a correction.

Rahm Emanuel was away from his Chicago home for several years, first while representing a Chicago district in the U.S. House of Representatives and more recently while serving as Chief of Staff to President Barack Obama.  When long-time Mayor Richard Daley announced that he would not seek reelection in 2011, Rahm Emanuel resigned as Chief of Staff, returned to Chicago, and announced his candidacy for Mayor.

Illinois law requires that a candidate for Mayor have been a resident of the city for at least a year prior to Election Day.  Several registered voters challenged the listing of Rahm Emanuel on the ballot, claiming that he did not meet the requirement of having resided in the City of Chicago for at least one year prior to Election Day.  The Chicago Board of Election Commissioners considered and rejected the challenge to Emanuel’s candidacy.  The objecting voters filed suit, and the state trial court upheld the decision of the Elections Board that Emanuel was eligible and should be listed on the ballot.  The objecting voters appealed to Illinois’ intermediate appellate court, which held that Emanuel was not eligible and should not be listed.  The Illinois Supreme Court agreed to hear the case on an emergency basis, and it reversed the intermediate appellate court and ordered that Emanuel’s name appear on the ballot.  The problem is that Election Day was only 28 days away when the state’s highest court finally resolved this issue.

Rahm Emanuel contended, and the Illinois Supreme Court agreed, that he was a “resident” of Chicago for electoral purposes during the time that his service as U.S. Representative and Chief of Staff to the President required his presence here in our nation’s capital.  We agree with the principle that an individual does not lose his or her “residence” for electoral purposes when service for the Federal Government (in a military or civilian capacity) requires the individual’s presence elsewhere.

If the Illinois Supreme Court had ruled the other way and had held Rahm Emanuel to be ineligible, it would have been necessary to send out new absentee ballots, just 27 or 26 days before Election Day.  Service members overseas risked being disenfranchised, because they would not have had time to receive the substitute ballots and to mark and return those ballots in time for them to be counted.  Extending the deadline for the return of overseas ballots would have interfered with timely mailing of absentee ballots for the runoff election, if a runoff had proved necessary.  Extending the date of the runoff would have required an extension of the term of office of the current Mayor. 

As it turned out, Rahm Emanuel was held to be eligible, and he was listed on the ballot, both on Election Day and on absentee ballots.  He received more than 50% of the vote and thus avoided the need for a runoff.

I believe that the states need to enact legislation to cover this sort of scenario, which arises from time to time.  Ballot access litigation should not result in the disenfranchisement of overseas military personnel.  One solution is to send out two ballots, one with the name of the challenged candidate and one without that candidate’s name.  The instructions should explain why two ballots are being sent simultaneously.  The voter should be instructed to mark both ballots.  If the challenged candidate is ruled eligible, the ballot with his or her name on it will be counted.  If the challenged candidate is ruled ineligible, the ballot without his or her name will be counted. 

I want to congratulate the Chicago Board of Election Commissioners for making special efforts in recent years to get absentee ballots mailed out well in advance of Election Day, and prior to the 45-day deadline now required by federal law, so that military personnel will have ample time to vote, no matter where the service of our country has taken them.  Readers:  Please check with your own local election official.  When were absentee ballots sent out for the 2010 general election?  How does your local election official handle the ballot access litigation scenario?

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