Updated 4:35 p.m.
Rahm Emanuel's campaign will appeal today's Illinois appellate court ruling
that he is ineligible to be mayor of Chicago for failing to meet state residency requirements.
"I have no doubt that, in the end, that we will prevail in this effort," Emanuel said
. "My attorneys are going to ask for a stay [of the appellate court's decision] there so I can get my name printed on the ballot as well."
If he is not granted that stay and
the Illinois Supreme Court does not overturn the lower court's opinion, it seems unlikely he would want take the Lisa Murkowski route and run as a write-in candidate, because the residency ruling would lead to a legal challenge to his being sworn into office.
On the one hand, there is no legal process to stop Emanuel from running a write-in campaign, according Ken Menzel, a legal counsel with the Illinois State Board of Elections.
"We don't have a challenge process for write-in candidates in Illinois," he explained. "You can't prevent a person from being a write-in candidate."
According to James Allen, a spokesman for the Chicago Board of Elections, Emanuel would have until Feb. 15 to file a write-in bid for the Feb. 22 Chicago mayoral primary election.
On the other hand -- and more importantly -- the state residency statute in question
in the case decided today governs eligibility to hold public office, not eligibility to be on a ballot.
"The basis of the challenge is the allegation he's not eligible for office," Menzel said.
The finding that Emanuel failed to meet the state's strict residency requirement, if not reversed, means a write-in campaign would begin in environment of uncertainty as to whether Emanuel could assume office, were he to win.
"I think you're getting into uncharted waters if you get into a write-in campaign," Menzel added. "This is the sort of thing that perhaps, if he were to try, we'd see some case-law made."
What is certain is that his eligibility to be sworn in as mayor would be challenged, should he win a write-in campaign, for the same reason his eligibility to be on the ballot has been -- and with, potentially, the same outcome.
"If the Illinois Supreme Court says this person is not eligible by statute to be mayor, then a write-in campaign won't make a difference," said Michael Dorf
, a Chicago attorney and election law expert who has previously advised Barack Obama, Alexi Giannoulias and other prominent Illinois Democratic candidates.
"He could mount a write-in campaign," Dorf noted. But, he added, the legal challenges that would accompany such an attempt would almost certainly mean "he can't be sworn in."
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