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Election Law @ Moritz

Election Law @ Moritz


Rahm Emanuel and Procedural Fairness

One of the more fascinating aspects of the dispute involving whether Rahm Emanuel is eligible for the Chicago mayoral ballot is the procedural posture of the case. After the Illinois appellate court ruled that Emanuel did not meet the Illinois residency requirements, Emanuel asked the Illinois Supreme Court to review the decision on an expedited basis and reverse the lower court. The Illinois Supreme Court then agreed to hear the case, stipulating that it would decide the case without oral argument and based solely on the briefs the parties filed in the appellate court.

This is unprecedented. I am not aware of an instance in which a court agrees to hear a case but refuses to entertain any new arguments directed to that court. Further, this approach could very well call into question the procedural fairness of the Illinois Supreme Court’s decision.

To be sure, the Illinois Supreme Court finds itself in a precarious situation. It must decide this dispute as quickly as possible, as the Chicago Board of Elections needs to print the ballots and prepare for early voting, which begins on Monday. This case presents a clear example of the difficult circumstances a court faces in deciding a last-minute election law dispute. The Illinois Supreme Court obviously believed that one way it could speed up the process was to decide the case without hearing from the lawyers.

But that also means the court will render a decision without the valuable input from those who have the greatest stake in the dispute: the advocates in the case. Moreover, the parties might slightly alter or tailor their arguments based on the appellate court’s decision. If this were not the case, litigants would never see the need to file new briefs – or even hire specialized practitioners – for cases they wish to appeal after losing at the initial appellate court. Here, the parties had been arguing the case to the Illinois appellate court under the guise that Emanuel had won below; their arguments to that court reflected this procedural reality. Now, the roles are reversed. Emanuel must argue that the lower court’s decision was wrong. Yet the Illinois Supreme Court will be considering the brief he submitted to the appellate court, which was framed in the context of the trial court being correct. Put another way, the brief the Illinois Supreme Court will review said “The lower (trial) court was correct” even though now, he would want to say that “The lower (appellate) court was wrong.” Modified legal arguments, or at least approaches and emphases, would necessarily flow from these different starting points.

Of course, the standard of review mitigates this concern somewhat: the Illinois appellate court agreed with the lower court’s factual findings but reversed on a question of statutory interpretation, meaning that the Illinois Supreme Court will review the case de novo (or anew). Further, both Emanuel and the challengers submitted briefs to the Illinois Supreme Court on whether that court should even hear the case. In those briefs, the parties analyzed the lower court’s decision. But that still does not change the fact that the Illinois Supreme Court indicated that it would decide the merits using the briefs submitted to the lower court. The parties thus do not have an adequate means to respond to the lower court’s decision or tailor their arguments to the current posture of the case.

Courts no doubt face a daunting task when they must decide a last-minute election dispute that could alter the outcome of the election. Moreover, the Illinois Supreme Court cannot control how quickly a lower court decides a case. At the same time, however, courts should ensure that the parties have an adequate opportunity to make their best case. Here, the Illinois Supreme Court could have asked for expedited briefing, limited the length of any briefs, or even heard oral argument without briefs. Relying solely on briefs in which the parties made in essence the opposite argument (regarding the correctness of the lower court’s decision) to a different court could call into question the procedural fairness of the Illinois Supreme Court’s approach.


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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