Mr. Emanuel returns from Washington: durational residence requirements and election litigation.

• Author: Dow, Gavin J.
• Position: Former congressman and White House Chief of Staff Rahm Emanuel

In the heat of the 2011 Chicago mayoral campaign, an appellate court in Illinois ordered the name of front-runner Rahm Emanuel, a former congressman and White House Chief of Staff, stricken from the ballot based on its determination that Emanuel had not been a Chicago resident for the one year preceding election day. The election was thrown into turmoil less than a month before voters were to go to the polls to elect the successor to the long-serving Mayor Richard M. Daley. The decision ignited a firestorm of condemnation that was fueled in part by a vigorous and visceral dissenting opinion as well as the appellate court's decision to not certify an appeal. Two days later, the Illinois Supreme Court ended the uproar by reversing the appellate court in Maksym v. Board of Election Commissioners, (1) turning the campaign's focus back to the candidates but issuing a legally questionable opinion in the process.

The case of Rahm Emanuel is one of the most high profile examples of candidates who face removal from the ballot based on durational residence requirements, laws specifying that candidates must have been residents of the electoral unit for a length of time before their election. In an era of increasing mobility, durational residence requirements can prove particularly onerous for potential candidates wishing to return "home" in order to run for political office. Moreover, as the story of Maksym amply illustrates, durational residence challenges force courts to resolve a tension between the rule of law and a preference for voter choice in a politically charged atmosphere within a much shorter timeframe than appellate courts traditionally are given to consider difficult questions. By requiring courts to make such difficult choices so quickly, durational residence requirements risk the legitimacy of courts on an issue that arguably should be resolved by the electorate itself.

Part I of this note discusses durational residence requirements, focusing on the elements of durational residence and the policies that animate them. Part II discusses Maksym v. Board of Election Commissioners, the Rahm Emanuel residence case, analyzing and critiquing the opinions of both the appellate court and state supreme court. Part III examines lessons that can be drawn from Maksym, and in particular the difficulties this class of cases poses for courts, the impulse of courts to resolve legal questions in the interest of promoting voter choice, and ways in which a court confronted with a similar issue in the future could deal with it.

1. AN OVERVIEW OF DURATIONAL RESIDENCE REQUIREMENTS

   Durational residence requirements are neither new nor unique. The Constitution has a durational residence requirement for the President, (2) as well as durational national citizenship requirements for Congressmen. (3) Many states impose some form of durational residence requirement for at least some elected state officials, including governors, (4) legislators, (5) judges, (6) and mayors. (7) The proliferation of state requirements results in several different interpretations of what constitutes residence, which is again substantially confused by the interchangeable use of the terms "residence" and "domicile" in some jurisdictions. It is impossible to articulate a single definition of residence that applies universally.

   Durational residence requirements can serve several legitimate purposes. They give voters and candidates the opportunity to become familiar with one another. Voters may be interested in knowing "the candidate's ability, character, personality, and reputation," (8) or "the ... experience[] and views of the individuals who seek to represent them." (9) Voters have an interest in "apprais[ing] those who seek to be candidates for a key ... office that touches important events and relationships of their lives and of the community in which they live. There are innumerable qualities and qualifications that are relevant." (10)

   Durational residence requirements may also "ensure that governmental officials are sufficiently connected to their constituents to serve them with sensitivity and understanding." (11) They act to assure the electorate that "their elected representatives will have at least a minimum amount of ties to the community." (12) Further, "[r]equiring candidates to live in a district for a reasonable period of time before the election encourages them to become familiar with the problems, needs, and concerns of the people they seek to represent." (13) This affords candidates "the opportunity to know the customs and the mores of the people." (14) Durational residence requirements also guard against "precinct shopping," the practice of candidates changing residences in order to find favorable electoral districts. (15)

   There is no single definition of "residence" for election purposes. Each state possesses the power to set voter and candidate qualifications consistently with the Constitution, (16) and, as a consequence, each state can define and interpret its durational residence requirements differently. However, three related concepts are frequently used to determine a candidate's residence: domicile, habitation, and the existence of a physical dwelling place.

   The first concept that often informs the definition of residence is domicile. Unlike the other two concepts, domicile has a settled legal meaning, one that is usually consistent from jurisdiction to jurisdiction. At birth, one acquires a domicile of origin, generally that of one of his or her parents. (17) Under certain circumstances thereafter, such as a change of domicile by the parents of a minor, one's domicile can change by operation of law. (18) Upon attaining adulthood, one can acquire a new domicile of choice through a union of physical presence in a new location and an intention to make that place one's home. (19) Once established, a domicile continues until superseded by a new one, (20) and a person has one and only one domicile at any given time. (21)

   Domicile measures the place a person subjectively but reasonably considers to be "home," irrespective of whether he or she actually lives there. It is "a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere." (22) Because one's extant domicile can under most circumstances only be changed through a person's intention to acquire a new domicile, a person never intending to make a permanent home elsewhere never loses his or her original domicile, in spite of absence from a jurisdiction that can stretch for years at a time. Domicile thus reflects a person's psychological connection with their home jurisdiction, a belief that such place is "home." Moreover, the rules governing domicile ensure that this belief is reasonable by prohibiting people from acquiring new domiciles of choice from afar and preventing maintenance of an old domicile where a person intends to make a home in a new location.

   Domicile can be analogized to state citizenship. (23) It is meant to reflect a permanent home, thereby excluding transient foreigners who live in a locality temporarily but intend to return to their own homes, such as students and persons on temporary work assignment. A durational residence requirement that incorporates domicile thus ensures that voters have a permanent relationship with their locality.

   The second concept is habitation, which denotes the location where a person can be said to actually live on a day-to-day basis. It requires only "an intention to live in a place for the time being." (24) This place could be virtually anything: a house, an apartment, a hotel room, a mobile home, or even automobile. Habitation thus reflects where a person actually lives, not where their home is. A college student living in a dormitory, for example, would inhabit the town where the dormitory is physically located, despite being domiciled elsewhere.

   The third concept is that of a dwelling place or a physical living space--a house, condominium, apartment, or other living quarters that one can or does call homey In the context of a candidate residence requirement, this usually means that the candidate must maintain some form of residential space--for example, an owned home or rented apartment--within the jurisdiction. Unlike domicile, it is possible for a person to have more than one dwelling place. (26) Further, a dwelling is different from domicile in that it is focused on where a person is able to live--including dwellings used infrequently, if at all--rather than where he or she considers to be the permanent and fixed home. (27)

   These three concepts are used in varying combinations by courts to test for residence within the differing meanings of state election codes. In some states, residence and domicile are equivalent (the pure domicile test), (28) and so a candidate domiciled for the requisite period meets the durational residence requirement. (29) Other states have more stringent requirements. Under the actual residence test, a candidate need not only be domiciled within the election jurisdiction for the requisite period, but must also maintain habitation there. (30) Other jurisdictions vary the mix.

2. MAKSYM V. BOARD OF ELECTION COMMISSIONERS:

   THE RAHM EMANUEL CASE

   1. Durational Residence Requirements in Illinois

      Illinois has required durational residence for public officials since the Illinois Constitution of 1818. (31) Durational residence requirements have been maintained for constitutional offices ever since. (32) In addition to constitutional requirements, Illinois statutory law contains additional durational residence requirements. Pertinent to a discussion of the Emanuel case is the statutory durational residence requirement for municipal officers. The office of mayor has historically required that the mayor be a qualified elector, (33) which in turn required that a person be a resident of his or her voting district during...