Thursday, November 16, 2017

What do you call a shill who polls a little too well?

After the first Monday in December 2018, such a person might be addressed as "Your Honor."

It's a weak joke, perhaps.

But I get comments with distressing regularity about this candidate, or that one, being a "shill." Most of these get flushed.

But what is a shill, you ask?

A shill is a person who files for election to a particular office at the behest of another candidate, a pseudo-candidate with no serious intention of campaigning and with every intention of withdrawing if asked to by the person who put him or her up to it.

In judicial elections, females with Irish surnames are frequently accused of being shills, circulating and filing in a race with the goal of keeping 'serious' candidates -- many of whom also seem to be females with Irish surnames, by the way -- from choosing to run for that vacancy. (I'll leave it to you, dear reader, to decide if this seems just a teensy bit inconsistent.)

Is there anything illegal about being a shill?

I couldn't find anything that prohibits it in the course of my research. But I don't pretend to be an expert. So I reached out to a prominent election lawyer and asked him the question. The election lawyer, who asked not to be named, said that he also knows of no legal prohibition against recruiting a shill or filing as a shill.

So... are there really a lot of shill candidates in judicial elections?

My election lawyer contact said he doesn't think there are a lot of shill candidates in judicial races; there may not be any at all.

That was my perception, too.

Sure, some candidates work 24/7 at campaigning and fundraising and go everywhere and see everyone... and some candidates get their name on the ballot and hope for lightning to strike. In 1996 I was one of those looking-for-lighting candidates. I finished dead last in my race. On the other hand, in 1994, I campaigned as hard as I could and raised money and spent more and went everywhere that would let me in and stood outside a lot of other places besides... and I still finished dead last.

I wasn't a shill on either occasion. I was merely an inexperienced and ineffective candidate.

No one bothered trying to 'steer' me toward this race, or away from that one, either time I ran. I wasn't important enough to be of concern to anyone.

However, in the run-up to the opening filing date, on November 27, it is just possible that some current candidates have been contacted with offers of help with petitions... or campaign contributions... or endorsements... or some other good and valuable considerations... but only if the candidate chooses to run for the Smith vacancy... not the Jones vacancy. I don't say this has happened, only that it might have.

A novice candidate, or a naive one, might even be flattered by offers of help, even offers with strings a mile long. But beware. Candidates, if someone offers you free advice, and that someone is not your spouse or significant other, that someone might be working for someone else. My advice, candidates, is trust in the Lord alone -- and watch everyone else like a hawk. Candidates should be wary even of persons they hire. If the doctrine of caveat emptor has fallen into disrepute in other areas, it is alive and well in the non-beanbag world of Cook County politics. I don't suggest you reject all offers of help or refrain from hiring help where you can. Just don't place your future entirely in anyone else's hands. Stay vigilant.

Of course, the maxim be careful what you wish for can also come into play: Some political sharpies, working surreptitiously on behalf of judicial candidate Zyzwcyz, for example, might 'steer' first-time candidate Mary Margaret McGillicuddy and two other women with Irish surnames and limited political savvy into the race Zyzwcyz expects to make. The goal is to have the fair colleens split the votes that are traditionally cast for women with Irish surnames, creating a clearer path for a Zyzwycz victory. But what if Mary Margaret's campaign catches fire? What if the other women drop out? (And, for the record, the names Mary Margaret McGillicuddy and Zyzwycz were chosen because they do not appear on the Master Roll of Illinois attorneys. I checked.)

Trying to 'steer' or plant candidates can be fraught with peril in any race, for any office: I don't subscribe to conspiracy theories -- but if you had told me, two years ago, that some Democratic Party sharpies had, through however many intermediaries, flattered or otherwise 'steered' a certain megalomaniacal Manhattan multi-millionaire into making another run for the White House, with the aim of wreaking havoc in the national Republican party and making the eventual Republican nominee (who couldn't possibly be the aforementioned multi-millionaire) that much more vulnerable to the inevitable Democratic candidate, well, I'd have believed you. In fact, even after the various Russian revelations, sometimes I still think this is the only explanation that truly fits the facts. I can imagine these nameless, faceless persons (well, I can't put names to them), agonizing like Zero Mostel, as Max Bialystock, "Where did I go right?"

Anyway, candidates, even though you probably won't see it here in the comments, some of you are sure to be called shills in the days to come. Don't take it personally.


Anonymous said...

Jason Gonzalez is in Federal Court right now suing Mike Madigan for putting 2 shills in their 2016 Primary race. The case was initially dismissed but was recently revived on one count. So when that case works its way up to the 7th Circuit we will get a definitive answer of whether or not it is illegal as a deprivation of a candidate's civil rights to put shills in the race.

Albert said...

I actually looked into this a while back. Examined all of the contests and data for the election cycles between 1992 and 2008 and identified 33 suspected ringer candidates (based in part on having no campaign $$ reported to the ISBE and a slated candidate who benefitted from the suspected candidate's presence in the contest). Eight of them succeeded in saving the slated candidate from defeat; six failed; and the other nineteen did not effect the outcome (have to check my notes again but I think that means the slated candidate won and would have won anyway). 31 of the 33 were between 1994 and 2000 and just two after that. Since 2010 there have been significantly fewer candidates yeah I think the election lawyer is right; there just hasn't been very much of this in recent years.

Jack Leyhane said...

The reference in the above comment from Anonymous 11/16 at 9:38 p.m. is to Gonzales v. Madigan, 2017 U.S. Dist. LEXIS 146079 (N.D. Ill. Sept. 11, 2017, Kennelly, J.). In reviving a portion of a previously-dismissed complaint, permitting a §1983 claim against Speaker Madigan to go forward, Judge Matthew Kennelly wrote, “a state representative’s use of his leverage to manipulate an election can constitute actionable conduct under color of state law,” particularly where the Speaker allegedly rewarded the “sham” candidates with jobs or other favors. (2017 U.S. Dist. LEXIS 146079, *13-14).

There is a large question in my mind as to whether an appointed judge could be deemed to have similar 'leverage' to Speaker Madigan's. While it appears that some of Gonzales's claims against private individuals may go forward in that case, my quick read of the latest order suggests that this is because of their participation in Mr. Madigan's activities, he being the state actor for purposes of Gonzales's claims. But, regardless of how this case turns out, I don't see how it could prevent a judicial candidate who was not a sitting judge from recruiting 'shill' or 'sham' candidates to dilute a potential opponent's voting strength.

For those among you who may wish to read more, in his Order, Judge Kennelly cites (2017 U.S. Dist. LEXIS 146079, *14) to Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975). The pertinent provisions of that case, for purposes of the Gonzales opinion, appear to be at 523 F.2d 864 (bold-face added): “It is not every election irregularity, however, which will give rise to a constitutional claim and an action under section 1983. Mere violation of a state statute by an election official, for example, will not. See Snowden v. Hughes, 321 U.S. 1, 11, 88 L. Ed. 497, 64 S. Ct. 397 (1944). Infringements of voting rights found to have risen to a constitutional level include dilution of votes by reason of malapportioned voting districts or weighted voting systems, Reynolds v. Sims, supra, 377 U.S. 533; Gray v. Sanders, 372 U.S. 368, 9 L. Ed. 2d 821, 83 S. Ct. 801 (1963); Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); purposeful or systematic discrimination against voters of a certain class, Carrington v. Rash, 380 U.S. 89, 13 L. Ed. 2d 675, 85 S. Ct. 775 (1965); United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1960), geographic area, Moore v. Ogilvie, 394 U.S. 814, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969); Communist Party of Illinois v. State Board of Elections, 518 F.2d 517 (7th Cir. 1975), or political affiliation, Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970); election frauds, United States v. Saylor, 322 U.S. 385, 88 L. Ed. 1341, 64 S. Ct. 1101 (1944); United States v. Classic, 313 U.S. 299, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941); and other wilful conduct which undermines the organic processes by which candidates are elected, Smith v. Cherry, supra, 489 F.2d 1098 (placing bogus candidate on primary ballot); Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970) (failure to give notice to prospective candidates of new and rigorous standards for ballot placement and denial of access to disqualified petitions).”

Major caveat: All of the above is based on quick and dirty research this morning -- blog stuff, not law review stuff. But I'm pretty sure I'm correctly pointing readers to the pertinent case.

Jack Leyhane said...

Thank you, as always, Albert, for providing the fruits of your research.

Anonymous said...

I heard there is a lawyer in the a subcircuit thinking of changing his name to Mary Margaret McGillicuddy. It's been done before.

Jack Leyhane said...

Anon 11/17 at 9:42 a.m. -- Funny. I like it. But some readers may not realize that it can't really be done. For any of these, herewith the link to this 2013 post I did about names that candidates can... and can't... use.

Anonymous said...

Mike Gonzalez appointed countywide.

Anonymous said...

We're halfway through the Late Vacancy period and not one has posted yet in the entire state - what gives?

Anonymous said...

Gonzalez appointed to countywide Egan vacancy.

Anonymous said...


Anonymous said...

I interpreted trial court’s reconsideration of Gonzalez claims as ruling that he adequately plead 1983 conspiracy to deprive constitutional rts, that is, defs alleged to have worked in concert to violate law with goal to deprive equal protection, speech, due process, etc under color of law. Madigan and Madigan may have been only two people in state that could fly against. I think it sends shockwave through establishment.

Anonymous said...

I sorta thought it wasn’t about the plaintiff prospective elective office as much as the defs took steps (accessed records under seal without lawful authority) to deprive him of equal protection. So, sorta saying you can screw with election with private entity and not create constitutional cause but cross the line when you gain advantage by nature of office.