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Madigan’s lawyers say it doesn’t legally matter if alleged sham candidates were sham candidates

Thursday, Jul 11, 2019

* Cook County Record

Illinois House Speaker Michael Madigan and some of his allies are arguing they were exercising free speech when they allegedly ran two Hispanic “sham candidates” to lure votes from a Hispanic primary challenger to Madigan, who is now suing Madigan and others on grounds such alleged tactics were unlawful.

Jason Gonzales filed suit in August 2016 in Chicago federal court alleging Madigan and some of his supporters engaged in underhanded methods to ensure a lopsided win for the Speaker in the 2016 Democratic Primary. The alleged unethical acts included slating two Hispanic candidates for no reason other than to split the Hispanic vote Gonzales has argued he could have received. The candidates were Joe Barbosa and Grasiela Rodriguez, who are also being sued by Gonzales. […]

Gonzales is arguing defendants should not be permitted to use the First Amendment as a defense. Defendants countered by filing arguments on why they should be allowed.

* From the Madigan filing

(C)omplaints about campaign strategies, even “dirty tricks” that successfully undermine candidacies, are not actionable in federal court. See, e.g., Jones, 892 F.3d at 939 (referendum pushed by candidate’s opponents to disqualify him from running for mayor was “a political dirty trick,” but the “right response” would have been a “political,” “campaign[] against the … referendum” and prevail “at the ballot box rather than the courthouse”). As the Jones court stated, “[a]ny effort by the judiciary to stop one politician from proposing and advocating steps that injure another politician would do more to violate the First Amendment … than to vindicate the Equal Protection Clause.” […]

(T)here is no intent requirement to run for office under Illinois law. […]

In fact, the state could not impose an intent requirement on any candidate for their purpose in running for office. For example, states cannot force candidates to swear loyalty oaths disclaiming certain beliefs to access the ballot. See, e.g., Communist Party of Ind. v. Whitcomb, 414 U.S. 441, 442‐43, 449‐50 (1974) (striking down requirement that political candidates swear that they do not advocate for the overthrow of government by force or violence); Socialist Workers Party v. Hill, 483 F.2d 554, 556‐57 (5th Cir. 1973) (candidates could not be forced to swear “obeisance and homage” to current form of government to access ballot). If the state cannot require Barbosa and Rodriguez to swear loyalty to the United States to run for office, the state certainly cannot require Barbosa and Rodriguez to swear they are not running to make it harder for Plaintiff to win a primary.

And if the First Amendment protects candidates who run with the intent of altering our form of government, then certainly it protects Barbosa and Rodriguez for running with whatever intent they had, including the alleged intent to take votes away from Plaintiff.

- Posted by Rich Miller        

45 Comments »
  1. - Tommydanger - Thursday, Jul 11, 19 @ 3:48 pm:

    I have failed to see the legal basis for the lawsuit from the beginning. Call it ‘dirty politics’ or a sham or call Madigan a coward for not wanting to face an opponent one on one. I just do not see how it can be a crime or actionable under any legal theory I am familiar with.


  2. - Gooner - Thursday, Jul 11, 19 @ 3:51 pm:

    That seems to the real issue with the case.

    Even assuming every word said against Speaker Madigan was true, so what?

    Candidates who are not serious run all the time. Candidates drop out all the time.

    In addition, the petititions themselves just refer to the person being a candidate. There is nothing on the petition that would arise to a false statement of fact by the person filing.


  3. - Three Dimensional Checkers - Thursday, Jul 11, 19 @ 3:52 pm:

    I don’t think the analogy between fake candidates running for office and communist candidates running for office is particularly strong. It seems like a legal argument you make when you have no other legal arguments to make.


  4. - Oswego Willy - Thursday, Jul 11, 19 @ 3:55 pm:

    ===It seems like a legal argument you make when you have no other legal arguments to make.===

    I’m not saying you’re wrong. At all.

    I’m trying to find the legal argument anyone is wholly entitled to have a “one on one” election with anyone.

    How do you make that a legal argument?


  5. - The Real Captain - Thursday, Jul 11, 19 @ 3:57 pm:

    Were the petitions legal? Were the candidates legally able to run for that district? Nowhere in law does it state that a candidate has to have a moral or even rational reason for running for office.


  6. - Skeptic - Thursday, Jul 11, 19 @ 3:58 pm:

    “I don’t think the analogy between fake candidates running for office” How would that differ from, say, Sam McCann whose apparent raison d’etre was to siphon votes away from Bruce Rauner?


  7. - My button is broke... - Thursday, Jul 11, 19 @ 3:58 pm:

    Along similar lines, what is the minimal amount of effort a candidate would need to do in order to be considered real? Once a court sets that line, then the candidates will just do the bare minimum. What about races for a library district? While this “stinks” to the average citizen, I don’t know what the prospective solution would be.


  8. - Ron Burgundy - Thursday, Jul 11, 19 @ 3:59 pm:

    This is a winning argument, and the Speaker knows how to win. At the end of the day, if you have to pretty much admit you did the shady things that you previously denied doing to win on the law, you do it.


  9. - Three Dimensional Checkers - Thursday, Jul 11, 19 @ 4:00 pm:

    == How do you make that a legal argument? ==

    Yeah, I don’t know about that either. I’d look at Judge Kennelly’s ruling on the Motion of Summary Judgment Madigan et al. filed probably about a year ago now. Honestly, it would take more time than I am willing to spend for free to really figure it out.


  10. - Oswego Willy - Thursday, Jul 11, 19 @ 4:01 pm:

    ===Honestly, it would take more time than I am willing to spend for free to really figure it out.===

    #BillableHours


  11. - James Knell - Thursday, Jul 11, 19 @ 4:01 pm:

    “… slating two Hispanic candidates for no reason other than to split the Hispanic vote.”

    In that argument seems to be an assumption that Hispanic candidates are entitled to Hispanic votes. That might work in judicial retention elections where it helps to have an Irish last name like O’Bama. In State Rep. races they need to like you and/or your party. Jason Gonzales was a very qualified candidate except he seemed to forget that he needed people to like him.


  12. - Morty - Thursday, Jul 11, 19 @ 4:07 pm:

    Honestly, I wish this could be the staw that broke the camels back…it’s not.

    As a hard-core liberal the day Madigan leaves office will be a great day.


  13. - Ron Burgundy - Thursday, Jul 11, 19 @ 4:08 pm:

    If the Speaker had won with less than 50%, there might be an argument that these shenanigans deprived Hispanics of the ability to elect a Hispanic rep., but it didn’t happen. Tough sell when even in a 1 on 1 race where you get all the votes that went to Hispanic candidates you still lose.


  14. - phenom_Anon - Thursday, Jul 11, 19 @ 4:11 pm:

    I’ve always wondered when they were going to get to whatever law or rule was violated. This just didn’t seem like something against the law. Maybe there is some blanket electoral fraud that could apply but I doubt it.

    Though I wouldn’t have a problem with passing a law to address what is clearly dirty politics. That said, I can see enforcement being nearly impossible, because they would just have to get the sham candidates to go through a few more hoops to be “real”.


  15. - Three Dimensional Checkers - Thursday, Jul 11, 19 @ 4:12 pm:

    == #BillableHours ==

    Lol. There are many things I’d choose to read for free, and these filing are not one of them. But it does seem like Judge Kennelly thinks there is some sort of legal claim to make, or he would’ve dismissed the lawsuit.


  16. - Michael Westen - Thursday, Jul 11, 19 @ 4:13 pm:

    I’ve been wondering why they haven’t used this argument from the beginning. If I want to run for office, the reason doesn’t matter. The First Amendment says I can as long as I’m otherwise qualified.


  17. - James Knell - Thursday, Jul 11, 19 @ 4:18 pm:

    The two alleged “ringers” got 6% & 2% respectively. Now if that were in the margin of victory, there might be an argument. But Madigan won 65% to 27%.

    And how do we know that the 8% weren’t directed at annoying the aggrieved Jason?


  18. - Oswego Willy - Thursday, Jul 11, 19 @ 4:20 pm:

    ===But it does seem like Judge Kennelly thinks there is some sort of legal claim to make, or he would’ve dismissed the lawsuit.===

    My amateur thought is “let’s hear this out to put it to bed, otherwise others will be before this Court trying to riff off Gonzo’s tune.”

    Please don’t bill me for responding to you. Thanks.

    :)


  19. - Steve - Thursday, Jul 11, 19 @ 4:27 pm:

    It’s hard to find what’s illegal about encouraging sham candidates to run for office. Anyway, I doubt this was the real reason the lawsuit was filed anyone. The purpose of the lawsuit was to get Speaker Madigan under oath. Speaker Madigan didn’t say much or remember much.


  20. - TheInvisibleMan - Thursday, Jul 11, 19 @ 4:30 pm:

    proving that you can file a lawsuit for the moon not being made out of green cheese - if you have the filing fee.


  21. - revvedup - Thursday, Jul 11, 19 @ 4:33 pm:

    Well, that’s a novel argument, but lacking any legal support, might well merit an Attorney Registration & Disciplinary Commission complaint against the Plaintiff’s attorney(s) for filing a frivolous suit. Kennelly is likely letting the arguments be filed before dropping the judicial hammer, to reduce the likelihood of the inevitable frivolous appeal. Nothing to see here folks, move along.


  22. - DIstant watcher - Thursday, Jul 11, 19 @ 4:34 pm:

    If plaintiffs prevail, then look for challenges to 2020 candidates that their petitions may be fine and they may actually live in the district, etc, but in their heart of hearts, they don’t want to serve and so they should be struck from the ballot.

    That’s what the plaintiffs’ suit comes down to. Can’t see that winning.


  23. - Been There - Thursday, Jul 11, 19 @ 4:45 pm:

    You have to watch what you wish for when you put up candidates. Just ask Frank Aguilar.


  24. - Centennial - Thursday, Jul 11, 19 @ 5:24 pm:

    I feel like MJM could have saved some legal fees and just responded, “And what of it, Tony?”


  25. - Grand Avenue - Thursday, Jul 11, 19 @ 5:26 pm:

    There did seem to be a drop in suspected sham candidates in 2018 and 2019, likely because of not wanting to have a Federal lawsuit. Even though I think the Speaker will win, defending this lawsuit has been an expensive pain in the butt


  26. - Grand Avenue - Thursday, Jul 11, 19 @ 5:28 pm:

    It came out in discovery that Blair Hull is funding this lawsuit. Did something happen between Hull & Madigan that I missed?


  27. - Henry Francis - Thursday, Jul 11, 19 @ 5:40 pm:

    Once Gonzo wins his case, Bruce will have his precedent to sue JB for running that sham candidate McCann


  28. - Oswego Willy - Thursday, Jul 11, 19 @ 5:44 pm:

    ===Bruce will have his precedent to sue JB for running that sham candidate McCann===

    I hope this is snark.

    McCann had ads, went to events, tried to gain entrance into other events, I believe McCann even tried for newspaper endorsements.

    Tough to say “McCann was Sham” but it’s a pretty sweet chant.


  29. - Not a Billionaire - Thursday, Jul 11, 19 @ 6:02 pm:

    The only thing I can think of being illegal is if he somehow broke campaign finance law…other than that I am no fan but ….this is a sham suit.


  30. - Anyone Remember - Thursday, Jul 11, 19 @ 6:18 pm:

    Serious question - so if instead of a “sham” candidate, a candidate is “recruited” by stoking up personal animosity / hatred / political revenge, that is OK?


  31. - Fax Machine - Thursday, Jul 11, 19 @ 6:24 pm:

    Ultimately both these candidates signed statements of candidacy sworn before a notary so unless they were offered something to run - and that has been disproven - I don’t see how the Speaker can be said to have violated Gonzales’ civil rights


  32. - Three Dimensional Checkers - Thursday, Jul 11, 19 @ 6:36 pm:

    == My amateur thought is “let’s hear this out to put it to bed, otherwise others will be before this Court trying to riff off Gonzo’s tune.” ==

    That might be so. I not an expert, but just black letter civil procedure would suggest the judge thinks there is some possible legal claim and at least some evidence, however small, that could prove the claim. The judge might change his mind later with more briefing and discovery, although it would seem they are probably done with discovery.


  33. - Just Me 2 - Thursday, Jul 11, 19 @ 6:45 pm:

    Any candidate who now accepts Madigan support can be asked if they are running to win or simply to help another candidate.


  34. - Oswego Willy - Thursday, Jul 11, 19 @ 6:50 pm:

    ===Any candidate who now accepts Madigan support can be asked if they are running to win or simply to help another candidate.===

    That include, say, a 3-4 term House member running unopposed?

    That would be…silly… but…


  35. - Just Me 2 - Thursday, Jul 11, 19 @ 7:16 pm:

    It’s finally come to this. After all these years Madigan is just openly admitting he is corrupt.


  36. - Mama - Thursday, Jul 11, 19 @ 7:28 pm:

    I can’t believe the courts took this case. It is not like Madigan only won by a few votes. Geesh! It seems like Rauner is trying to run Madigan out of money with all of his crazy lawsuits.


  37. - Anonanonsir - Thursday, Jul 11, 19 @ 11:21 pm:

    ==You have to watch what you wish for when you put up candidates. Just ask Frank Aguilar.==

    If I recall correctly, the GOP put up a Hispanic candidate against Lisa Hernandez in the primary.
    She beat Hernandez, and then beat the incumbent Aguilar in the general. (The GOP wasn’t going to hold on to that seat anyway.)
    Then she served her term in Springfield, but (hardly a surprise) never won over Madigan. The next time around things went as planned, and Hernandez became state rep.


  38. - Stuntman Bob's Brother - Friday, Jul 12, 19 @ 2:36 am:

    If these are the ground rules going forward, when Gonzales runs again, his supporters need to put up three other candidates as well: Mick Madigan, Spike Madigan, and Mike Madagan.


  39. - Tim - Friday, Jul 12, 19 @ 6:22 am:

    Whether it is illegal or not, the point has been made and reinforced. The Speaker might be the most unethical person to ever represent taxpayers in the state of Illinois. The state will be a better place when he is not involved in its government.


  40. - @misterjayem - Friday, Jul 12, 19 @ 7:44 am:

    If I remember the twists and turns of this long drawn-out case correctly, Madigan could still be in trouble even if his lawyers are correct IF Gonzo’s legal team can prove that Madigan’s otherwise legal conduct in this case involved power and authority he had by virtue of his official positions.

    In other words, it’s probably okay if Madigan persuaded the sham candidates to run using only his personal political power and charm — but if he got the sham candidates to run by using resources only available to him as a state representative and Speaker of the Illinois House that would be a big no-no.

    As is always the case in Illinois, the hitch will be in somehow sorting the political power of the person from the political power of the office.

    – MrJM


  41. - Huh? - Friday, Jul 12, 19 @ 8:46 am:

    This filing reminds me of blago’s defence when AFSCME sued him. His defense was that his campaign bloviating was political puffery and didn’t mean anything.


  42. - pool boy - Friday, Jul 12, 19 @ 8:52 am:

    If he got 65% of the vote why did he feel the need to do this? Pretty much tells me who the velvet hammer is really looking out for.


  43. - Pot calling kettle - Friday, Jul 12, 19 @ 9:19 am:

    ==If he got 65% of the vote why did he feel the need to do this? ==

    For me, that’s the most interesting question. It indicates a level of insecurity that seems odd for a person who consistently delivers for his district and has been consistently reelected by large margins.


  44. - Been There - Friday, Jul 12, 19 @ 9:49 am:

    ===If I recall correctly, the GOP put up a Hispanic candidate against Lisa Hernandez in the primary.
    She beat Hernandez, and then beat the incumbent Aguilar in the general. (The GOP wasn’t going to hold on to that seat anyway.)
    Then she served her term in Springfield, but (hardly a surprise) never won over Madigan. The next time around things went as planned, and Hernandez became state rep.===
    Chavez ended being a really nice person to deal with. Clueless on the process but that was understandable. And she would bring some kind of concoction to the Latino caucus events that she would insist that you try and was kinda nasty. I think she stayed in good with the powers that be and had a decent job somewhere.


  45. - Nanker Phelge - Friday, Jul 12, 19 @ 4:00 pm:

    I can’t comment on the legality of Madigan’s moves as I have not studied the law enough, but it seems to me it is a stretch to say that he was practicing his First Amendment rights. Recruiting sham candidates is not speech, but maybe it isn’t breaking the law either.

    However, it is dirty and says a lot about the character of Mike Madigan. Not the sort of character you want in a public servant.


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