Gonzales case may answer the question of shills in judicial races

Some readers get aggravated with me from time to time, and never more so when the subject is "shills."

I accept the possibility that, perhaps, now and then, this candidate or that one has entered the lists at the behest of another candidate -- statistics show that, for example, in general, a male candidate will be disadvantaged in a one-on-one race with a female. But... maybe... if the male candidate can recruit one or two other women to enter the race -- just enter the race, without campaigning -- sufficient votes may be divided between or among the female candidates to allow the male candidate to slip through.

That's the theory, at least. In practice, it doesn't work out so well.

In a comment submitted to FWIW on a post last year, Dr. Albert J. Klumpp, a research analyst with a public policy PhD, and the author of several scholarly works analyzing judicial elections, stated that his research disclosed 33 instances of probable shill candidacies in countywide circuit court contests between 1994 and 2004. He found that "there were instances where a ringer meant the difference between victory and defeat for a slated candidate. But the success rate was less than 25 percent. So it’s no surprise that there were none after 2004. Benefits didn't justify costs."

I'm not positive that there haven't been any shill candidacies in countywide judicial races since 2004 -- but I am dead certain sure that there haven't been nearly as many as charged.

In the last election cycle, Injustice Watch ran a story (published also in the Chicago Sun-Times) calling out a number of alleged "shills" by name. I ran a lengthy response here. (See also, Wait... I thought shills weren't supposed to have lawn signs... and Guest Post: Bonnie McMgrath responds to Injustice Watch story on shills.)

The bottom line is that, as employed in recent years, the accusation of being a "shill" is just another campaign slur, like "extremist" or "Trumpite" or "lizard person."

OK, I haven't actually seen a mailer accusing a Cook County judicial candidate of being a lizard person. Yet. But I wouldn't be at all surprised.

And "shill" is a particularly good slur to bandy about because it is intended to injure at least two people: The candidate who is allegedly the shill and the candidate who recruited the shill. And the implication is that both the recruiter and the recruited have done something illegal, immoral, or fattening.

Gonzales v. Madigan, 2021 U.S. App. LEXIS 6635 (No. 20-1874, 3/8/21), does not resolve the morality question. But Judge Easterbrook's brief, tart opinion leaves little doubt that the use of shills is not illegal.

Jason Gonzales challenged Michael J. Madigan in the 2016 Democratic Primary for state representative. Also on the ballot that March were Grasiela Rodriguez and Joe Barboza. Quoting now from the Gonzales opinion (slip op. at p. 2),

Gonzales contends in this suit under 42 U.S.C. §1983 that Rodriguez and Barboza were stooges put on the ballot by Madigan’s allies to divide the Hispanic vote and ensure Madigan’s victory. The effort was hardly necessary, since if every non-Madigan vote had gone to Gonzales he still would have lost in a landslide. Nonetheless, Gonzales contends, the appearance of two candidates who served only as distractors violated the Equal Protection Clause in the Fourteenth Amendment and entitles him to damages (perhaps represented by the expenses of his failed run).

Dismissal of the suit was upheld because, even if the other two Hispanic candidates were recruited by Madigan (who denied any such thing), the alleged "sponsorship" was no secret. Quoting again from the opinion (slip op. at p. 3),

Gonzales smelled a rat from the start and made that known to the electorate, which swept Madigan back into office anyway. An editorial in the Chicago Sun-Times agreed with Gonzales about the provenance of the Rodriguez and Barboza candidacies, so the voters did not have to take his word for it.

Gonzales relied on Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), which, according to the new Seventh Circuit opinion (slip op. pp. 2-3), "held that a stalking-horse candidacy, in which the nominal contestant secretly planned to withdraw after winning the primary and permit a party commitee to name the candidate for the general election, could in principle violate the Equal Protection Clause." The Gonzales court describes Smith as "a bolt from the blue. It does not have any predecessors that we could find. Nor has it had any successors" (slip op. at p. 5).

I'd have thought, reading Smith, that its predecessor was Shakman v. Democratic Organization of Cook County, 435 F.2d 267 (7th Cir. 1970), which the Smith court quoted for the principle, "The interests of candidates in official treatment free from intentional or purposeful discrimination are entitled to constitutional protection" (489 F.2d 1098, at 1103, quoting from 435 F.2d at 270). Shakman isn't just a predecessor of Smith: Though now over 50 years old, the case is still pending (see, Shakman v. Clerk of Cook County, 2020 U.S. Dist. LEXIS 67626 (opinion by Magistrate Judge Schenkier)).

Michael Shakman was a young lawyer when he sought election to Con-Con -- the same Constitutional Convention at which a young Michael J. Madigan got his start in electoral politics.

Shakman ran from a district that included Hyde Park, where he had attended law school.

In 1969 there were few places within the corporate limits of the City of Chicago where the legendary Machine of Mayor (and, more imporant, Cook County Democratic Party Chairman) Richard J. Daley did not hold sway. But Hyde Park was one of these. Even Mr. Shakman admitted, in this 2008 interview for the Abraham Lincoln Presidential Library, that the Machine could not "reliably dominate" the district from which he ran. In fact, as the interview reveals, Shakman got through the initial round of voting to be elected as a delegate. There were four finalists, independents Shakman and civil rights activist Al Raby, and the "organization" candidates, Attie Belle McGee and Odas Nicholson (later a Circuit Court judge). Raby and Nicolson won. Shakman finished third.

Shakman's claim, that he was constitutionally disadvantaged by the patronage armies of the Daley Machine in Hyde Park, must have seemed as implausible to the District Judge initially assigned to that case, Arbraham Lincoln Marvoitz, as Jason Gonzales' claim, that Michael J. Madigan needed to recruit ringers in order to win, seemed to Judge Easterbrook. But a panel of Easterbrook's predecessors reversed Marovitz.

Anyway, it would appear that Cook County judicial candidates are free to recruit shills if they think it will help their prospects. Which it probably won't.

Besides, if "just run" is deemed a plausible and even potentially successful campaign strategy, how the heck would you be able to tell a shill from anyone else?

And Gonzales won't stop people from accusing some candidates of being shills. But I don't have to repeat baseless accusations here.