The nervous laugh rolled off Rahm Emanuel's tongue. "Anything in the news you guys want to talk about?" he asked a gaggle of reporters at a press conference Monday afternoon, Jan. 24. It was a rhetorical question. He knew what the issue of the day was.
That day, news spread quickly and virally that the Illinois appellate court had ruled shockingly and unexpectedly 2 to 1 in favor of leaving the former White House chief of staff off Chicago's mayoral ballot. Unexpected, because the judgment overturned the Chicago Board of Elections' decision from December that appeared to settle the controversy. Shocking, because Emanuel had seemed to be the inevitable winner, with a celebrity entourage from former President Bill Clinton to singer Jennifer Hudson parading through Chicago over the past few weeks to show their support for him. Now, with early voting to start in Chicago on Jan. 31, it is still unclear who will be on the ballot.
At the press conference, Emanuel said, "I have no doubt at the end we'll prevail in this effort. We'll now go to the next level to get clarity." By 5 p.m., more than 60 people gathered outside the Chicago Board of Elections in support of Emanuel. His spokesman Ben LaBolt announced that an expedited appeal to the Illinois State Supreme Court would be filed Tuesday, Jan. 25, along with an emergency motion to keep Emanuel on the ballots, which are scheduled to be printed in the next few days.
Either way, the timing will help other candidates, including underdog City of Chicago clerk Miguel del Valle and former U.S. Senator Carol Moseley Braun, who has been beleaguered by allegations of tax problems that suggest financial difficulty. Political observers point out that another underdog, former Chicago School Board president Gery Chico, who has worked as Mayor Richard Daley's chief of staff, has the backing of Chicago alderman Ed Burke, who is married to Anne Burke, one of the seven justices on the Illinois State Supreme Court. A Chicago Tribune poll last week showed Emanuel with 44% of the prospective vote, compared with Braun at 21%, Chico at 16%, del Valle with 6% and 7% undecided. A Chicago mayoral candidate must win more than 50% of the vote to win outright and avoid a runoff.
The appellate-court decision stunned attorney Burt Odelson, who led the case of those who objected to Emanuel's candidacy because they believe he does not satisfy residency requirements. "I thought from Day 1, We're going to lose most of the way up," he told TIME. But, he added, "I knew I had something when Justice [Thomas] Hoffman asked Emanuel's lawyers, 'If you lived in Chicago for 10 years and moved to Rockford, are you are still a resident of Chicago?' and Emanuel's lawyers said, 'Yes, if you intend to come back.' " That seemed to echo the Illinois municipal code Odelson had used in argument that it mandated that anyone running for mayor must have "resided in" Chicago for the one year preceding the Feb. 22, 2011, mayoral election and allows exemptions only for those who have served in military action.
Emanuel's legal team, for its part, had used Illinois state-election code, which says that "no elector shall be deemed to have lost his or her residence by reason of his or her absence on business of the United States." This sets up a potential battle with the Illinois Supreme Court, which has to decide if it will even hear the case. "Even if Rahm was able to get the Supreme Court to review the case, which isn't certain, he's going to lose a week or two of campaign as he struggles with the sudden legal crisis," says University of Illinois at Chicago political expert Dick Simpson. "It changes the whole election process. While Rahm is busy dealing with this problem, his opponents will try to get his previous supporters and gain momentum."
Odelson, who was part of President George W. Bush's legal team in the Florida recount and has worked on election residency cases for 39 years, warns that if the state supreme court rules in Emanuel's favor, a bad precedent would be set for Chicago's public servants. He argues that allowing the former Obama chief of staff to skate past residency rules would allow policemen and other city workers who must maintain residency in Chicago to be able to work in the city to leave and sublease their homes, much as Emanuel did with his home when he worked in the White House and resided in Washington.