Guest Post: Sean Tenner puts the 2024 primary into perspective

As part of our continuing evaluation of the recent primary, FWIW is pleased to present this guest post from Sean Tenner, the 46th Ward Democratic Party Committeeperson and the President of KNI Communications.

by Sean Tenner

I appreciate the opportunity provided by Jack to provide my view – in a historical context - on voter turnout figures in the 2024 Cook County Democratic Primary, as well as some thoughts on trends in judicial elections.

I don’t know anyone in our field who thinks that today’s general level of voter participation, or civic engagement writ large, is where it should be for a healthy democracy. It is heartbreaking that, for example, only 613,795 people in the City of Chicago chose to vote in the 2023 Brandon Johnson / Paul Vallas runoff. Chicago has approximately 2.7 million residents and approximately 1,600,000 registered voters. In my experience, nearly all of them have strong opinions about the state of the city, crime, schools, property taxes, homelessness and whomever is serving as Mayor – or running for Mayor.

And in the April 2023 Chicago municipal election – in which only 38.67% of registered voters and 22.73% of all Chicagoans voted – the choices could not have been more clear or the process more accessible. In most wards the ballot had one question on it: Brandon Johnson or Paul Vallas for Mayor; as clear a distinction and ideological choice as one can hope for. In some wards there were Aldermanic run-off elections which should have increased – rather than decreased – turnout. Voters were given the option of voting by mail, voting at any of 50 early voting locations starting over two weeks before election day, or voting in their neighborhood precinct on election day.

Yet, nearly one million Chicago registered voters chose not to vote in this most personal and impactful of elections. And on a global level, the United States falls behind so many countries around the world – including those with far fewer resources and far less developed election infrastructure – in their voter turnout. Something is deeply wrong; and trends such as reverse-partisanship (voters who vote Republican not because they like Republicans, but because they really hate Democrats – and vice-versa), gerrymandering, polarization that discourages moderate voters from participating, and the ceaseless negativity and unpleasantness of modern politics all play a role.

However, I disagreed with characterizations in the media both before, during and after election day, that the 2024 Cook County Democratic Primary turnout was somehow catastrophically low in comparison to similar elections. Would it benefit our society if it was higher? Yes, of course. Should we work to increase it? Yes, absolutely and I am glad there are groups throughout Illinois working to do so as we prepare for the 2024 General Election. But, in a true historical context, it just was not a particularly low turnout and, in some ways, exceeded expectations and projections.

First let’s dispense with the notion that the 2024 Cook County Democratic Primary is comparable to any recent election is which a competitive Presidential race was on the ballot. This is apples and oranges. For many Cook County residents, and many Americans, Presidential races are all they care about. No competitive presidential race (the case in the 2024 primary) equals no trip to the polling place. 2008, 2016 and 2020 had competitive Presidential Primaries on the Cook County Primary Ballot. Even in 2020, during the “COVID Primary” about a million people voted despite all the challenges of that awful time.

Next we must eliminate, for comparison sake, elections where there is a competitive U.S. Senate or gubernatorial primary. Candidates spend millions of dollars on these races, and the airwaves are flooded with commercials. In blue Illinois, Democratic primaries in particular dominate ad spending, news coverage and voter engagement. In 2010 we had the extremely (near-recount) close Dan Hynes vs. Pat Quinn gubernatorial primary and the relatively close David Hoffman vs. Alexi Giannoulias US Senate Primary (among other races). In 2018 we had a surge of Democratic enthusiasm in the anti-Trump blue wave year. The Democratic gubernatorial primary between now-Governor JB Prtizer, then-State Senator Dan Biss, and business leader Chris Kennedy was hotly contested with millions of dollars in ads hitting airwaves and mailboxes across the state. The open Attorney General seat also drew a large field of credible and well-financed candidates, with then State Senator Kwame Raoul emerging victorious over 2nd place finisher, former Governor Pat Quinn.

So that leaves us with three recent primary elections with no competitive Presidential, Senatorial or Gubernatorial races on the ballot: 2012, 2014 and 2022.

The recent 2024 Democratic primary had a higher number of Cook County Democratic primary voters (630,444) than any of these three. This is despite the fact that 2022 (625,622) featured a competitive and expensive statewide primary for Secretary of State, won by Alexi Giannoulias. 2024 featured no competitive statewide constitutional office primaries.

Prior to 2024, 2012 was the last Presidential Primary year without a competitive Democratic nomination contest – President Obama was running unopposed for renomination. There were, however, competitive primaries for Illinois Supreme Court and Clerk of the Circuit Court, along with a slew of Congressional and legislative primaries. Yet only 440,873 voters turned out.

2014 was the year the bottom fell out. Only 285,728 voters turned out, with a suburban turnout percentage of just 7.13% and a city turnout of 13.32%.

So, why was turnout in 2024 higher than in these other years? A few thoughts:

• Voters understanding the importance of the judiciary in the wake of years of groundbreaking court decisions on issues such as marriage equality / LGBTQ rights, voting rights, guns and abortion. In other words, voters saying to themselves “Even though I don’t get very excited by judicial races, I know how important this stuff is and I should do my research and vote. It really matters now.” A competitive Illinois Supreme Court race surely had an impact.


• Expansions of early voting and vote by mail options as well as greater public awareness of these options.


• Get out the vote operations and communications by groups that became extremely energized during the backlash to Trump’s election (for example, Indivisible) and have continued their voter education and turnout work.


• Personal PAC has always been a major force in voter mobilization – particularly in Democratic primaries – but it grew even more impactful after the Dobbs decision. Its endorsements move people to the polls.


• Groups like ONE Northside worked hard at a grassroots level to turn out voters for Bring Chicago Home.


• A crop of new leaders around the county deploying data-driven and innovative voter mobilization tactics.


• The appearance of progressive voter guides and media outlets such as Injustice Watch and Girl, I Guess which generate more awareness of downballot races and their importance. If people have no clue how to vote in downballot races, they won’t vote. If they are told that their vote truly matters in downballot races and are given easier access to information (such as bar ratings), they will.


• The ease of finding candidate bar ratings online has, I believe, made voters much more confident in voting all the way to the end of the ballot for Judges. The percentage of voters voting for Judge keeps increasing, as pointed out by Jack and Dr. Klumpp.


• Finally, the Bring Chicago Home referendum in the city, and the State’s Attorney primary countywide, began to garner more significant voter interest in the closing sprint of the campaign, as evidenced by the large number of late arriving vote by mail ballots.

Every campaign cycle is different. The great thing about politics is that there is always another election coming up. Hopefully the high stakes of the Presidential race lead to a turnout that Cook County can be truly proud of in November.

Lesson learned from the March primary: Voter suppression works

Let me state at the outset that what follows here concerns the primary process gererally, not the judicial primary process specifically. But, to obtain election, judicial candidates must participate in this general process, so it is necessary to talk about this first, before asking what the general process means for judicial hopefuls. We'll get to it. Stay with me for now.

I'm currently reading Patrick Wohl's new book, Down Ballot, a case study of a 1990 suburban legislative Republican primary that was an early proving ground of Personal PAC's political clout and, because of the focus in that race on the abortion issue, one which gained national attention (Amazon link).

Wohl makes a statement early on that I think should be graven in stone: "An unfortunate side effect of the primary system nationwide is that it rewards politicians who serve merely as vacant vessels of the partisan will rather than effective and candid consensus-builders."

It was a truism taught in every Poli Sci 101 course for most of the 20th Century: Candidates seek the support of their party's base in the primaries -- that's where they find their volunteers, their door-knockers, phone-callers, and poll watchers -- but, once the nomination is secured, they lurch rightward or leftward (depending on the party involved), putting their 'consensus-building' skills on display, in order to pick up the uncommitted and non-partisan middle.

Like a lot of things we learned in school (Pluto is a planet, for example, or that dinosaurs were slow, stupid, scaly brutes), this truism is no longer nearly so true.

There are probably a lot of reasons for this, and the relative influence of each factor no doubt varies from locality to locality. But one reason why we nominate and elect ever more "vacant vessels" in this state has to do with the absence of a viable opposing party. We have mapped the two-party system out of existence.

When WE do it, of course, it is good politics; it is only when THEY do it (in exotic places like Alabama, Texas, or North Carolina) that it becomes evil gerrymandering.

In 2014, for example, Republican Bruce Rauner won 50.3% of the vote and was elected Governor of the State of Illinois (carrying every Illinois county except Cook). With a fair, proportionate electoral map, one might have expected the Illinois House to be nearly evenly split. But, thanks to the Democratic Party's superior cartographic skills, Democrats won a 71-vote supermajority in the Illinois House, just more than 60% of the total membership.

And this was no fluke. In 2022, Democratic candidates swept all statewide offices by healthy margins, from a low of 54.28% for Alexi Giannoulias, to a high of 57.08% for Susana Mendoza. With a fair, proportionate map, in such a strong Democratic year, one would have expected Democrats to win somewhere between 64 and 67 seats in the Illinois House. Instead, they won 78 of the available 118 seats, a 66.10% majority. In the State Senate, their majority increased to 67.80%, with 40 seats out of 59. And in Congress? Under the new electoral map, with Cook County sliced into narrow strips like IV-tubes, pumping reliably Democratic votes into the rest of the state, Democrats elected 14 House members, out of a total of 17. Of course, Congress is home to many vacant vessels, of all partisan persuasions.

In Cook County, we are used to the idea that Republicans won't even bother to field countywide judicial candidates. Personally, I think it embarrassing that the Republicans would not even put up a sacrificial lamb candidate for the Illinois Supreme Court, but a party that is about to give us Donald J. Trump as a presidential candidate for the third time must not be very susceptable to embarrassment. Or shame.

But legislative seats also go often uncontested in our fair state. Of the 23 State Senate seats up for election this year, nine are uncontested. A pre-primary analysis by Andrew Adams, of Capital News Illinois, published in the Belleville News Democrat, "Nearly 9 in 10 state-level primaries give Illinois voters no choice in candidates," asserts, "For judicial and state legislative races, 88 percent of primaries are uncontested, the most in the past 20 years. The number of primaries with a single candidate is also, albeit barely, at a two-decade high."

Adams cites John Shaw, director of the Paul Simon Public Policy Institute, for the proposition that "Illinois’ primary participation mirrors a national trend and is partially stoked by growing political polarization and state redistricting practices." According to Adams, Shaw thinks the "expectation of candidates to work across the aisle has decreased in recent decades, meaning that parties lean into ideology more."

Without a viable -- and competetitive -- two-party system, the primary becomes the election. And, whereas in happy days of yore, the ability to be a 'consensus-builder' was a good quality for a candidate facing a general election contest, where there is no general election opponent to face, who needs consensus? Compromise has now become a dirty word. If a candidate has appeal beyond the True Believers, this is seen as 'proof' that the candidate with potential cross-party appeal is really a MAGA Republican (not just any old Republican, mind you, but a MAGA Republican) in disguise. (The Downstate equivalent of MAGA Republican might be RINO, but as pejorative as RINO is meant to be, it may not be quite as insulting as MAGA Republican.) And, of course, heaven forfend if persons with money, who would otherwise be inclined, in a world with a viable two-party system, to invest in candidates of that other party, choose instead to invest some of their discretionary income supporting candidates whom they perceive as less antithetical to their interests than perhaps some other candidates.

After all, it is an outrage if THEY 'interfere' in OUR primary... although, obviously, it is perfectly acceptable for US to interfere in THEIRS. See, e.g., Darren Bailey.

You might think that, inasmuch as the primary really is the election, turnout for the primary should be on the upswing.

You might think this, perhaps, if you were from Mars.

Because that's not the way it works in reality, and it never has been. This year is no exception. The Cook County Clerk's Office says that there were 1,600,364 voters registered for this year's primary. Only 287,229 of them, however, bothered to show up at the polls, either on Election Day or before, at one of many early voting sites. Or returned a mail-in ballot. Lord knows, it's never been easier to cast a ballot, even as it appears ever harder to get voters to exercise their franchise.

In Cook County, no one risks death by going out to vote -- not like this Afghan lady in 2014 (photo source) who braved Taliban violence to exercise her franchise. Who knows what retribution she and other Afghan women have had to endure, now that the Taliban is back in power, as a result of simply going out to vote? (Never mind who she might have voted for.) In Cook County, now that patronage is gone, no one even risks their job by voting. And we had an 18% suburban turnout for what really will be the decisive election this year.

Admittedly, the City turnout appears to have been better: 390,697 City residents voted, according to the Chicago Board of Elections, out of a total of 1,509,554 eligible voters. That works out to 25.9%. Make it 26% if you want.

I can't know why there was a better (relatively speaking) turnout in the City than in the suburbs. My guess -- which I would prefer to characterize as considered opinion, or at least as informed speculation -- is that Bring Chicago Home brought some more Chicagoans out than might have come out otherwise. But put the numbers together and you find that 677,926 voters cast ballots in Cook County as a whole, out of a total of 3,109,918 registered voters. That's a 21.8% turnout. Over three in four of your neighbors could not be bothered to vote.

Why?

I blame voter suppression.

Voter suppression is supposed to be something that only THEY do. WE might move polling places, or consolidate precincts, but when WE do it, it is merely wise stewardship of taxpayer dollars.

But that's not the only kind of voter suppression.

Now, friends, I know you have never missed an election ever. I would venture to guess that most FWIW readers were student council nerds in high school. I was.

Most FWIW readers know that, in 1994 and 1996, I was thoroughly thumped at the polls in my wildly unsuccessful judicial bids. Before I ran, I'd always gotten a little Christmas-morning-type thrill on election days. I still got that little thrill, even after my losses. It was exciting to participate in the continuing American experiment, to do my sacred duty, and to greet friends and neighbors doing theirs. In recent years, with FWIW, I'd be online almost all day on election days (especially primary days), posting palm cards sent in by readers during the day, and then following the returns with rapt attention at night.

I hated the commercials, of course. I'm no fan of early voting, but I've often said that, if voting early would make my TV stop showing political commercials, I'd be camped out at the Super Site, waiting for it to open on the very first day. Sadly, it doesn't work that way.

Negative commercials are an insidious form of voter suppression. The effects are cumulative.

Smith (or political action committees supporting Smith but absolutely not coordinating with the Smith campaign) don't run attack ads against Jones in order to fire up likely Smith voters; Smith's voters weren't going to defect to Jones in any event. Nor do they pillory Jones in hopes of attracting Jones voters to Smith's banner; Jones voters are unlikely to see any imperfections in their candidate as a reason to support Smith instead. But -- and this is the reason why Smith and Smith-friendly groups attack Jones in the first place -- the incessant drumbeat of accusations, the sly innuendos, the grayed-out and unflattering photos -- all these may persuade some Jones supporters to simply stay home. They'd never vote for Smith... but Jones is not worthy of their support either.

The Smith campaign would call this smart politics; the Jones partisans might see themselves as victims of a voter suppression tactic.

Not that it will stop the Jones campaign (and/or totally not coordinating third parties) from launching attacks on Smith that are at least equally vicious. And equally discouraging to potential Smith voters.

And so it goes, back and forth, forth and back. Election cycles end, candidates come and go, but attack ads go on forever.

There is a danger of projection here.

We do this all the time: Some of us think that people stay home because they are satisfied with how the system is working, and who is being elected, and the policies they initiate. Others think people stay home because they have given up on the system: They are alienated from everyone running, and anyone elected, and hostile to every policy.

I don't like negative ads, so I imagine that three out of four of my neighbors must feel the same way... and that's why they stayed home on the Feast of St. Joseph.

Of course, I can't know that. Not for sure. And I certainly can not, and do not, claim it explains all of those who stayed home.

And there are scholars, apparently, who argue that negative campaign ads may actually stimulate turnout. As Mark Twain said, there are lies, damned lies, and statistics. We can prove anything with numbers these days, especially since no one knows math. Inflation really is under control -- just as long as you don't compare receipts on successive trips to the grocery. And the economy is really booming, the empty storefronts everywhere notwithstanding. Who are you going to believe? Scholars? Or your own lying eyes?

I chose to believe that the cumulative effects of all those smears, all that mud, hurled back and forth during every commercial break on every TV program, must depress election turnout. Because -- think for a moment -- what is the alternative? Turnout would have been less than 21.8% without the negative ads? (Statewide, turnout was an abysmal 19.07%.)

The health of our political system depends on an informed, engaged electorate.

As presumably all FWIW readers know, the abbreviation "GOTV" means "Get Out The Vote." This term is not typically used in a League-of-Women's-Voters-let's-get-everybody-out sense, but, rather, in a cynical, Orwellian way, meaning only "Get Out OUR Vote." The "T" is silent. Silenced. Let THEM get out THEIR voters, if they can, we murmur smugly to ourselves. WE will focus on getting out OUR voters... and only those we know we can count on.

That's one truism that seems to have stayed true: The smaller the turnout, the better success rate for the slated candidates. The Democratic Party's countywide slate was almost unanimously successful this year -- and in the one race not carried by the Party, several committeepersons supported the non-slated candidate. The Party has shown that it knows how to win. But does all this winning really indicate a healthy society, when between 3 out of 4 or 4 out of 5 potential voters stay home? I respectfully submit that we ex-student council nerds, who swim in the sewage of Twitter/X, can not maintain the system entirely on our own. And, because of who we are, we will be the last to notice that our system is crumbling around us. As we are led up to the wall to be shot, some of us will still be whining, "but we won the last election!"

And, here, finally, is where lawyers and judges can step up and set a good example. (And, I believe, to continue to set a good example.)

It is not enough to "win." In fact, winning (while it would be nice) isn't even that important.

The old saying, "it's not whether you win or lose, but how you play the game that counts," should apply to all elections, though it obviously does not. This rule has applied -- mostly -- to Cook County judicial elections through the years I've been paying attention. There have been some exceptions -- I've railed about some very unfortunate mail pieces, for example.

I've told this story in every subsequent election cycle: In 2008, when I first published bar ratings here on FWIW, I got an almost immediate call from a candidate who was quite agitated about a rating that I'd attributed to his opponent. "You wrote she was rated Qualified," he fumed. "She was not rated Qualified!"

"Hold on," I said, as I scrolled through the post and fumbled with the source material on my desk (I'd printed it out so that it would be easier to transcribe), but my agitated caller would not be put off: "Do you see yet?" he demanded. "She was not rated Qualified; she was rated Highly Qualified. You have to fix that!"

Imagine that happening in a race for state representative.

This attitude, though, is what we need in all elections, at all levels, from all candidates. This spirit still largely prevails in judicial elections although -- with the increased money devoted to these campaigns, and the various consultants who now help direct campaigns -- some of the scorched-earth attitudes of candidates further up the ballot has begun to sink down to the judicial races. This must be resisted at all costs, if only out of naked self-interest: The loser today may have to appear before the winner tomorrow.

If judicial campaigns can remain oases of civility and even gentility, maybe these good qualities can rise up on the ballot and into other races as well. Cross-contamination, if you will. Judicial candidates can lead the way -- and thereby un-supress some voters. At least they can try. And when good lawyers realize that our judicial elections are not the cesspools that races for other spots on the ballot are, perhaps more of them will come and enter the lists again, too. We would all benefit from that.

Raw numbers to chew on

Updated, with correction, 2/14/24

I started moaning about this last November.

I was (and remain) distressed by the fact that so few candidates came forward to seek election to the bench in Cook County. No less an authority than Dr. Albert J. Klumpp, a PhD in public policy analysis with a national reputation for his expertise on judicial races, said I was late (as usual) in figuring out the trend. He wrote, in a comment, "I made this very point four years ago in the CBA Record--that the number of canididates per judicial vacancy has been dropping substantially over the years. In the 1990s there were 4.7 candidates per vacancy; in the 2000s there were 4.0, and in the 2010s there were 2.9. What we're seeing here is just more of the same trend. I don't claim to know what's causing it, but somebody had better start looking into it because we're nearing the point where unqualified people can help themselves to judgeships just by putting their names in."

A couple of readers added comments that the judicial pension today is not as sweet as it was back in the day. Which is absolutely, objectively true. Just the other day, I was talking to a friend who mentioned that a recently-elected judge of his acquaintance told him he was never going to retire: The Tier 2 pension benefits just weren't worth it, he said.

Gosh.

In the private sector, for most people, pensions went the way of the dodo by the mid-1980s. Tier 2 not enough? Really? For a lot of us, any pension would be more pension than we are ever going to get.

Maybe the pension benefits do factor in, somehow.

But it occurred to me that there may be a bigger picture here.

I'd been nursing a hypothesis for some time now, but I didn't want to mention anything until the final numbers were in.

But I think it's fair to compare now. These numbers are from the ISBE website. Let's look at total numbers of candidates, statewide, in presidential primary years:

• 2000 - Total number of primary candidates... 1236
• 2004 - Total number of primary candidates... 1584
• 2008 - Total number of primary candidates... 1657
• 2012 - Total number of primary candidates... 1278
• 2016 - Total number of primary candidates... 1755
• 2020 - Total number of primary candidates... 1221
• 2024 - Total number of primary candidates... 909

There's a drop-off in candidate numbers that Tier 2 judicial pensions alone cannot explain.

Something's broken here. And not just in judicial elections. What do you think it is? How do you think we can fix this?

I'll hang up now and listen for your answers.

Try to give me comments I won't have to flush.

Has §7-10.2 of the Election Code become a Catch-22 for married women running for judge?

Updated 1/19/24 to add additional authorities

Looking more at the decision knocking Ashonta Rice off the Cook County judicial ballot....

When Mary Smith marries John Jones, she may become known as Mary Jones. At one time, perhaps as late as my parents' generation, this was almost universally the case. Since then... well, things have changed.

But not uniformly. Suppose Mary Smith had been practicing law for some years before marrying the aforementioned Mr. Jones. While, in every term of the Supreme Court, one can find examples of newly married women obtaining Orders changing their surnames on the Master Roll to conform with their newlywed status, our hypothetical Mary may be quite content to be known in the parish, or at her childrens' school, as Mary Jones, but insistent on remaining Mary Smith in her professional life.

Chances are, moreover, that there are still other settings in which Mary may use a combination of her married and maiden names, sometimes hyphenated, sometimes not. On certain bank accounts, perhaps, or on her voter's registration or driver's license. Maybe, just because they don't much like it, she makes her in-laws address her as Smith-Jones. There may be as many reasons for using all these variations on Mary's surname as there are settings in which her surname might be used -- but, in each case, it is still the same Mary.

I am certain that, if you consider your own circle of acquaintance, you will readily think of women, lawyers or not, who use their maiden names in some contexts, their married names in others, and/or hyphenated or merely adjacent names in still others. Welcome to the 21st Century.

Which brings us to §7-10.2 of the Election Code.

This section of the Code was amended in 2007 to require that:

If a candidate has changed his or her name, whether by a statutory or common law procedure in Illinois or any other jurisdiction, within 3 years before the last day for filing the petition or certificate for that office, whichever is applicable, then (i) the candidate's name on the petition or certificate must be followed by "formerly known as (list all prior names during the 3-year period) until name changed on (list date of each such name change)" and (ii) the petition or certificate must be accompanied by the candidate's affidavit stating the candidate's previous names during the period specified in (i) and the date or dates each of those names was changed....

Failure to make the required disclosure would, henceforth, be grounds for removal from the ballot.

The apparent impetus for the insertion of this second sentence into §7-10.2 was the decision of a Park Ridge lawyer of German heritage to change his name to a more ballot-friendly Irish moniker. He did not just swap surnames, he changed his first and middle names as well.

Unfortunately for this person's judicial ambitions, the press got hold of the story... and, knowing that the papers were ready to pounce, he never did file. (He did, however, change his name back to the one his parents gave him.) (As I recall, not all the press coverage was negative. An Irish paper, the Irish Times, I think, wrote a rather good-humored article, welcoming the new Irishman.)

Whatever.

That near-occasion of candidacy was the reason for the statutory amendment. Perhaps the amended statute has since deterred others from attempting similar ploys. But if the purpose of the amendment was to keep people from assuming a more-electable name and then seeking election, it has certainly failed at least once. The way a candidate can entirely evade the past-names-disclosure provision is to keep his or her head down, and his or her new name out of the media, for more than three years.

I thought I had discerned all the pitfalls of §7-10.2 when I wrote about it in 2013.

As is all too frequently the case, I was wrong.

Section 7-10.2 was successfully deployed in the 2020 election cycle to knock Caroline Patricia Jamieson off the ballot. Caroline Patricia Jamieson had previously sought election to the bench, in the 2018 Democratic primary, as Caroline Jamieson Golden. The candidate's last name was Jamieson at birth; she had acquired the surname Golden by marriage. She'd used Golden on the Master Roll of Attorneys. She had been elected to her local suburban school board as Caroline Golden. On the other hand, she certainly had not changed her name; she'd done nothing like the Park Ridge attorney who'd inspired the name change amendment to §7-10.2. Instead, she chose to resume using a name she'd put aside some years back. But it was not a new name.

I wrote about that case, which went all the way to the Appellate Court (see, Oberholtzer v. Cook County Officers Electoral Board, 2020 IL App (1st) 200218-U), in some detail in February 2020. But I think that case can be quickly summarized this way: The candidate wasn't ruled off the ballot because she'd failed to disclose a change of name (second sentence of §7-10.2) but, rather, because she'd not used her actual "surname" in contravention of the first sentence of §7-10.2: Unlike our hypothetical Mary Smith and/or Mary Jones and/or Mary Smith-Jones, this candidate had (in the opinion of the judges deciding her case) not used both her married name and given name interchangeably, depending on circumstance and situation, but had really only used her married name. (Except, of course, that the challenge to her nominating petitions was based on an alleged violation of the name change provision, the second sentence of §7-10.2... and aren't petition challenges supposed to be limited strictly to the grounds asserted?)

I thought the answer to that parenthetical question is (and should have been in that case) "yes": In McCaskill v. Mun. Officers Electoral Board for the City of Harvey, 2019 IL App (1st) 190190, ¶32, the Appellate Court said it would not "create an objection never raised in the objector's petition before the Board," citing Wiesner v. Brennan, 2016 IL App (2d) 160115, ¶17, for the proposition that "all objections to nominating papers must be contained within objector's petition; no new objections may be raised or considered thereafter").

But, regardless, this brings us back, finally, to where we started, with the new case knocking Ashonta Rice off the ballot.

As the linked decision shows, the objection to Rice's nominating papers was grounded in that second sentence of §7-10.2, arguing her papers were fatally defective because they did not disclose that Ashonta C. Rice was "formerly known as" Ashonta C. Rice-Akiwowo.

The objectors submitted documentary evidence showing that Rice had used the surname Rice-Akiwowo or sometimes just Akiwowo after her 2012 marriage. FWIW readers will recall that Rice had run for a 15th Subcircuit vacancy, in 2018, as Rice-Akiwowo.

According to the linked decision, Rice filed a dissolution of marriage action in 2022. And therein lies the dispositive datum, in the opinion of those that matter, although I see this as nothing more than a red herring: An interim order was entered in that case (which is apparently still pending) entitled "Agreed Name Change Order," the operative language of which, according to the hearing officer's report and recommendation was, "Petitioner/Counter-Respondent, Ashonta C. Akiwowo is hereby granted leave to resume the use of her maiden name of RICE." Expert testimony was presented to suggest that this kind of a name change order, though common as part of the final disposition of a dissolution action, was, at this stage of the case, merely an interlocutory order subject to change at any time. Therefore, the exception to the name-change rule in the second sentence of §7-10.2, which is also contained in that very lengthy second sentence, excepting name changes "resulting from... dissolution of marriage" would not apply.

The objectors, the hearing officer, and the Electoral Board all took this interim order as proof that the candidate knew she was changing her name... which is why the first part of that second sentence of §7-10.2 would be implicated.

The hearing officer specifically noted that, after the name change order was entered, Rice changed her driver's license to Ashonta Rice. She changed her voter registration to Ashonta Rice. She changed her name back to Ashonta Rice with the Social Security Administration, too.

Well, of course she did: After Oberholtzer, and after Ruffin v. Feller, 2022 IL App (1st) 220692, any careful female lawyer with judicial aspirations and without official backing would and should anticipate some sort of name-based petition challenge. (In Ruffin, a divorced candidate for the office of Cook County Sheriff was ruled off the ballot. She had been granted leave to resume use of her maiden name as part of the final dissolution orders, but never re-registered to vote in her maiden name from the former marital residence, which she continued to occupy. Therefore, the Electoral Board ruled, and the Appellate Court affirmed, that, at the time of the signing of her statement of candidacy, there was no registered voter at the address given by the name of "Latonya Ruffin.")

As noted at the outset here, most married women, including women who marry and then divorce, proceed through life known by different names to different persons, in different settings, for different purposes, without much difficulty or confusion. But somehow female political candidates in Cook County are treated differently, as if, in bearing the various names that society bestows, they are trying to deceive the public like a candidate who really does change his or her name from one thing to something completely different, so the public might think the candidate was someone he or she was not.

Rice may not have helped her cause.

According to the hearing officer's report, when asked about the provenance of the name change order, Rice claimed that she could not "recall" who suggested it.

Fine. Rice would not be the first attorney who turned out to be a less than stellar witness on her own behalf. I can think of one excellent attorney that I had to present twice, in different cases, who could not turn off the lawyer-analyzing-everything portion of her brain and just answer the questions posed. She was playing chess, when only checkers was required, and she came off as evasive or uncertain.

I did not see Ashonta Rice testify, of course, and I don't know if she had the problem my friend did. But, if she did, it is no shame. Lawyers are not generally called upon to be witnesses; it is not part of our required skill set. The ability to come across as a good witness is certainly not required to be a good judge.

On the other hand, a fact finder, whether judge, jury, or hearing officer, can only evaluate what they see and hear. And if the testimony comes off badly, the witness' credibility will be damaged, perhaps fatally.

What Rice could have said, or at least what I think the truth is generally in these cases, if for some reason not actually so in Rice's case, is that, thanks to §7-10.2, a married woman candidate is now forced to navigate between Oberholzer and Ruffin, a modern-day Scylla and Charybdis. Heads I win, tails you lose. Catch-22.

I would agree that the §7-10.2 exception for name changes obtained in dissolution actions should not have applied in Rice's case -- but only because the first part of the second sentence of §7-10.2, prohibiting candidates from changing their names, also did not apply.

It is clear that Rice used her married name, or some hyphenated combination of given and married names, in a number of contexts. She ran for judge in 2018 as Rice-Akiwowo.

But, professionally, and unlike the candidate in the Oberholtz case who sometimes used her maiden name as a middle name but never as her surname until her last judicial run, Rice apparently always practiced law as Ashonta C. Rice. That is certainly the name she used when she applied for associate judge in 2015, in 2017, and in 2021.

Moreover, she was Ashonta C. Rice when she was slated by the Cook County Democratic Party as its 10th alternate in 2019, and again in 2021, when the Party slated her as its fourth alternate. (To be clear, in this election cycle, had she been allowed on the ballot, she would have been running against the Party's slated candidate.)

Rice never abandoned the surname Rice. She never put it to one side. She did not have to change her name 'back' to what it always was.

But, of course, that's only my opinion. And, if you have paying any attention here at all, my opinion is not the one that counts.

When the drafters of the amendment to §7-10.2 came up with a provision to prevent future German guys from pretending to be Irish, I very much doubt that they also intended it to weaponized against married women whose varying surnames conform to our current social customs. I am virtually positive that, even if that was their intention, such an intention was not communicated to the female members of the General Assembly who approved the amendment. Pending further amendment, or clarifying court action, however, this is where matters now stand.

This primary will likely provide a good test of the strength of the Cook County Democratic Party... and an opportunity for judicial candidates?

Not that I'm predicting the future, really, because I can't.

If I could really predict the future, I'd pick the winning numbers in the Powerball or Mega Millions and be done with all this.

But I think I can spot trends... and I think I can posit possible outcomes based on the observed trend lines.

Getting specific, I think there are going to be spirited contests on the Democratic primary ballot next year that should enhance turnout.

Turnout is always greater in presidential years, but, at the national level, the Democratic Party is going to do its darndest to make certain that the presidential primary season is anything but interesting. The Democratic National Convention will be in Chicago next year and the tourist areas will be spruced up, and the hotels and restaurants will be eager to welcome conventioneers, but the convention itself should... if all goes according to plan... be so boring that even C-Span will not be interested in covering it.

Of course, that was probably the original plan heading into 1968, too. (Remember, LBJ did not announce that he was not seeking renomination until March 31, 1968.)

But, whatever. The Democratic Party's idea is to make the renomination of Biden and Harris so mundane that it will be easy to keep the nation's focus on the Republicans and their expected renomination of former President Trump. (As the national Republicans, being apparently both stupid and obliging, seem -- at this point -- frightfully willing to do.)

I've read that religious observance has fallen off nationally, and more among Democrats than Republicans, but I believe Democratic Party leaders do pray, and pray fervently, for the continued good health of Donald John Trump: So long as he lives, no troublesome, potentially divisive, substantive issue can ever hope to fracture the enormous coalition of those terrified by the existential threat of Trump, TRUMP, TRUMP!

Of course, all of this historical insight and sophisticated punditry is wasted on many FWIW readers, who only want to know how (to use the phrase employed by Horace Rumpole's creator, Sir John Mortimer) to get their bottoms on the bench.

So let's put it this way: Low turnout elections favor slated candidates in down-ballot races; higher turnouts create opportunities for non-slated candidates. Even if the presidential primary is a snoozefest, there will be heated primary contests for Cook County State's Attorney, Clerk of the Circuit Court, and the Illinois Supreme Court. These contests, and the annoying TV commercials that will bombard us in these races, will bring some people to the polls who do not ordinarily come out for primaries.

The State's Attorney's race, in particular, will increase turnout.

The battle lines were drawn at last week's slating meeting. This Tweet from Capitol Fax anticipates the tone of the coming race:

‘Establishment candidate’ slated by establishment over defiant Dem with Republican ties https://t.co/iQtRJMCUsy

— Capitol Fax (@capitolfax) August 16, 2023

I don't take sides on this site.

But I can report that the Cook County Democratic Party did not suspect Eileen O'Neill Burke of any "Republican ties" when it slated her for the Appellate Court in 2015 (picking her instead of a Circuit Court judge already serving on the Supreme Court by appointment).

Of course, in the coming race, one or more mischievous consultants will persuade one or more gullible multi-millionaires, rich people with undeniable Republican ties, to pour huge amounts of money into TV commercials attacking O'Neill Burke's primary opponent, Clayton Harris III (Gov. Rod Blagojevich's last Chief of Staff) as the Second Coming of Kim Foxx. Whether Harris is, or is not, aligned with Foxx on every issue will be unimportant: Every commercial attacking Harris will further the narrative that O'Neill Burke is nothing more than a Republican in Democratic clothing. Remember what I said about stupid and obliging Republicans?

The millionaires would get a better return on their forthcoming investment by just giving me their money, even if I did nothing more with it than burn it this winter to keep warm. But there's no helping some people....

Anyway, the O'Neill Burke v. Harris donnybrook will bring some voters out for the primary who don't usually come out. Many of these will vote in other races... potentially even for judges. That is where peril lies for the Party (will the new voters know enough to hew to the Party line all the way down the ballot) and where opportunity lurks for everyone else.

Hispanic voters are going to be courted assiduously in 2024. Clerk of the Circuit Court Iris Martinez was dumped by the Cook County Democratic Party. Appellate Court Justice Jesse Reyes was turned away in his bid to be slated as the first Hispanic justice of the Illinois Supreme Court. They're both running. Who else will get their voters? Will the voters they bring out help other Hispanic candidates in down-ballot races? Candidates with Irish names used to have a big 'leg up' in low-profile judicial races. In recent cycles candidates with familiar Hispanic names have also enjoyed a boost. Will that boost be bigger this year than ever before?

Don't let anyone kid you: The job of a political party is to get its candidates elected. Political professionals do not want large turnouts in primaries; they're actually in favor of voter suppression -- as long as it's the other guy's voters that are being suppressed, not theirs. A quiet presidential primary should ordinarily favor the slate. But high profile countywide races will nudge the turnout needle... creating danger for some... and opportunity for others.

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Photo credit: Leffler, Warren K, photographer. Young "hippie" standing in front of a row of National Guard soldiers, across the street from the Hilton Hotel at Grant Park, at the Democratic National Convention in Chicago. United States Illinois Chicago, 1968. [29 August] Photograph. https://www.loc.gov/item/2016652537/.

Guest Post: Approaching a new retention normal?

Today FWIW is again honored to present a Guest Post by Albert J. Klumpp, a generous and frequent contributor to FWIW over the years, a research analyst with a public policy PhD, and the author of several scholarly works analyzing judicial elections.

by Albert J. Klumpp

Despite the current level of political turmoil throughout our country, last Tuesday’s election concluded one of the quietest judicial retention cycles on record. Nationally there were 692 state court judges seeking noncompetitive retention in eighteen different states. Pending some unreported results in Kansas and Indiana, 689 of the judges appear to have been retained. The lone exceptions were in Maricopa County, Arizona, where three trial court judges with less-than-perfect marks from the state’s judicial performance commission were on the verge of defeat, albeit with many thousands of ballots still to count.

Here in Cook County, the voting indicated that the surge in interest in the retention part of the ballot that began in 2018 and grew in 2020 is starting to fade. This is not at all unexpected. The same happened during the Operation Greylord elections of the 1980s, and has happened in other jurisdictions as well. But while the post-Greylord voting was largely the same as the pre-Greylord voting, in this instance future retention elections are likely to settle into a somewhat different normal compared to the past.

Ballots are still being counted in both city and suburbs, but the retention numbers are complete enough to allow for a sufficient examination of the results:

• The reported voter turnout of 41% is the lowest for any November election since the adoption of judicial retention in 1964. Conversely, the median participation rate for the retention judges on the ballot was 76%, the highest level ever. Since it typically is the most regular and dedicated voters who complete the retention part of the ballot, the two figures in combination is not a surprise.

• The baseline approval rate for the 61 judges on the retention ballot, controlling for all positive and negative variables, was a historically typical 75.3 percent. This is exactly the same figure as in 2020 and just below the 75.4 percent level in 2018. (There in fact were 62 judges listed on the ballot, but unfortunately both the city and county election agencies did not report vote totals for the retiring Daniel Pierce.)

• Among the bar association ratings, the Illinois State Bar Association’s were by far the most influential at roughly eight percent of the vote, compared to roughly five percent for all of the other bars combined. In recent years the ISBA ratings have been reported more frequently by suburban media, so their growing influence is to be expected, and in fact was measured as growing in 2018 and 2020. However, in this election they were predominant among the bar groups even in the city. The eight percent figure may be a bit of an overstatement, due to the small overall number of negative ratings by the bars and the consequent difficulty in estimating their impact, but the trend is undeniable.


• The two social media guides from progressive activists that were detectable in the 2018 and 2020 voting were once again detectable here. The “Girl I Guess” guide was used by roughly 4.8 percent of the voters, while the “Cheat Sheet” guide circulated by the Chicago Votes group was used by roughly 1.6 percent. As expected, both were much more influential in the city than in the suburbs.


• Unlike the primaries, where name cues are highly influential and often determinative, name cues are of little significance in retention voting and were not a major influence here. Female judges did 1.8 percent better than males, and among the three most important race/ethnicity categories (Irish, Black, Hispanic), none was worth more than 1 percent.


• Overall roughly 200,000 voters made use of information from one of the above-named information sources to cast a mixture of yes and no votes. This is double the historically typical figure of 100,000, but only a fraction of the 400,000 in 2018 and the 520,000 in 2020. However, while the number is smaller than in the two previous elections, it occurred with no help whatsoever from either of the major metropolitan newspapers, The Sun-Times and Tribune both not only declined to offer any retention recommendations of their own, but did not even report any of the bar association ratings for informational purposes.

One final point, something that drew surprisingly little pre-election attention but cannot be ignored:

This was the county Democratic party’s mailer for the election, showing a full retreat from the aggressive position taken by the party in 2018 and 2020 regarding retention candidates. There is no mention on the party’s website of having done the sort of investigating that it claimed to have done in 2018 and 2020, so this appears to be simply a reversion to the party’s previous long-running practice of simply recommending yes votes on the full retention class. And while this may have surprised many observers, history teaches us that it should have surprised no one.

In 1887, 1921, 1953, 1984 and again in 2020 the local political powers-that-be suffered headline-generating embarrassments in judicial elections, because they forgot the lessons of the past and were repudiated by the electorate for trying to overly influence the process of judicial selection. It’s a remarkably cyclical pattern that repeats every thirty-something years, and proves the old adage of those who forget history being doomed to repeat it. This mailer may well be evidence of another cycle coming to a close.

Looking forward, if the Sun-Times and Tribune, which were significant drivers of retention votes in the past, continue to shun the retention candidates in the future, then future elections will continue to see the combination of the internet, social media and smartphones play the primary role in retention voting as they apparently did here. The mixture of information-based votes will be more political and less profession-oriented — especially considering that the bar community shows no interest in strategies to increase the use of its ratings, and seems oddly accepting of its lessening influence. This will likely occur regardless of the choices made by the county Democratic party.

When the results are official the ward and township numbers are final, I’ll share some detail from the analysis at that level. For now I’ll just add the usual fine print about how the figures cited above are statistical estimates with margins of error, but that on the whole they “fit” the retention results very well and describe the voting patterns accurately.

Something to consider for those who think the 60% + 1 judicial retention bar too low

Would anyone seriously call Pritzker's margin over Bailey a squeaker? A close call? A cliffhanger?

Maybe "landslide" would be used only by those with a rooting interest -- but it does not seem at all hyperbolic to say that Gov. Pritzker enjoyed a "comfortable" or "double-digit" margin over State Sen. Bailey, at 54.2% to 43.1%. The election had been called by every major news outlet before the election judges had a chance to get home.

But if J.B. Pritzker were a Cook County judge seeking retention, he would have been kicked out of office with "only" a 54.2% favorable vote.

It was a Democratic sweep last night in Illinois, but outside of races for Cook County offices where the Republicans cobbled together a ticket only after the primary, very few winners got 60% of the vote. If 60% + 1 were the standard, every lopsided Democratic statewide winner, not just Pritzker, would have gone down to defeat.

But, just as sure as sunrise, there will be those who lament that the judicial retention standard is too lenient, a virtual guarantee of lifetime employment for those fortunate enough to serve in the judiciary.

But, in reality, it's darned hard for a candidate to get the approval of more than six out of every 10 voters. It's an achievement. Just look at the numbers.

The maps won

In this data-driven age, as long as the politicians get to select their own voters by drawing the maps, the maps will pretty much always win. Election outcomes are essentially determined at the redistricting stage.

Statewide, some 54% or 55% of the voters supported the Democratic Party's sweep of statewide offices (I believe Comptroller Susan Mendoza may have led the ticket with something like 57% of the vote). If legislative maps were proportinately drawn, Democrats should expect to receive 64 seats in the 118-member Illinois House and 32 or 33 seats in the Illinois Senate -- a comfortable majority, but not veto-proof. But, thanks to the superb cartographic skills of the Democratic Party's map-makers, Democrats will again enjoy supermajorities in both houses.

With proportionate maps, there might have been as many as seven or even eight Republicans sent to the U.S. House from Illinois. But with the maps we have, with what look like straws snaking into Cook County's seemingly inexhaustible fund of Democratic votes from all directions, there will be perhaps three Republicans in Illinois' 17-member delegation.

In Texas or North Carolina this would be denounced as gerrymandering. Here...? I guess here you'd best just call it good politics.

But the Democratic Party's mapmakers faced a real challenge this year.

When Tom Kilbride's Supreme Court retention bid failed in 2020, the possibility of a 4-3 Republican majority on the Illinois Supreme Court became more than theoretical. While Cook County has long been a Democratic bastion, and while the collar counties have been turning and trending Blue and Bluer for several election cycles, the rest of the State has turned more correspondingly Red. Republican victories in the then-existing Second and Third Judicial Districts seemed likely.

So the Illinois Democratic Party had to redraw the Supreme Court districts.

But the 1970 Illinois Constitution posed some significant obstacles for the map-makers: Cook County IS the First Judicial District, according to the Constitution. It cannot be broken up into chunks, even for the noble purpose of protecting a Democratic majority on the Illinois Supreme Court.

There was only one option: The collar counties had to be shuffled in a way to maximize the Democratic Party's chances. In 2018 Pritzker won the counties comprising both the new Second Judicial District (DeKalb, Kendall, Kane, Lake, and McHenry Counties) and the new Third Judicial District (Bureau, LaSalle, Grundy, Iroquois, Kankakee, DuPage and Will Counties). Thus, the map-makers thought they had a shot at both new seats.

They may well have been right.

Lake County Judge Elizabeth Rochford defeated former Lake County Sheriff Mark Curran to win the new Second Judicial District seat.

And, judging by results posted online this morning by the respective county clerks, it appears that Appellate Court Justice Mary K. O'Brien is going to defeat appointed Supreme Court Justice Michael Burke, albeit by only about 8,000 votes:

And the margin of defeat, if the numbers hold, will have come from DuPage County, where Burke is from.

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UPDATE: O'Brien has claimed victory.

Dr. Klumpp: Bar ratings more significant than ever in this judicial primary

This morning FWIW is honored to present this Guest Post by Albert J. Klumpp, a generous and frequent contributor to FWIW over the years, a research analyst with a public policy PhD, and the author of several scholarly works analyzing judicial elections.

by Albert J. Klumpp

By all accounts this was supposed to be a boring primary, particularly as it related to judicial candidates. Low turnout and nothing unusual.

Low turnout? Yes, without question. But nothing unusual? Hardly.

Turnout, as FWIW has already noted, was exceptionally low. At roughly 19 percent, it was the second-lowest for a modern-era primary, above only the 2014 primary—which similarly had little of competitive interest at the top of either party’s ballot.

As for the judicial contests, the voters who did turn out did not neglect them. In fact, the ballot dropoff for the twelve countywide judicial contests was the lowest ever, at only 16 percent.

A high participation rate in bottom-of-the-ballot contests is typical in a low-turnout election. With fewer casual voters turning out, the more diligent voters who always turn out and complete the entire ballot comprise a higher percentage of the electorate. But even so, this primary’s voters were singularly attentive to the judicial section of the ballot.

And the choices made by those voters were unlike any seen in a previous primary. Yes, the usual influences were present. Slating, for instance: candidates slated by the county Democratic party saw a boost of roughly 14 percentage points, one of the highest numbers in recent years. This is not a surprise. When turnout is lower, slating usually—not always but usually—is more valuable, since party loyalists who are reliable voters comprise more of the electorate.

The subcircuit contests showed this as well. Of the sixteen subcircuit contests, I was able to identify ten in which one candidate received all or most of the local political support, and nine of those ten candidates were winners.

Gender also played a significant role. Lower-turnout elections tend to see less of a pro-female vote, and this year there were no female candidates at the top of the ballot to attract female voters. Nevertheless, the gender vote in this primary was roughly 17 percentage points, a surprisingly high number. Possibly the timing of the U.S. Supreme Court’s abortion ruling was a factor, but this is only speculation.

Neither gender nor slating, though, was the biggest influence on the judicial voting. Nor were name cues. The advantages of Irish, Black and Hispanic surnames were difficult to estimate in this primary because of the small number of candidates, but they clearly were smaller than in previous years. Likewise, ballot position was less influential; the first ballot position seemed to be worth roughly four percentage points, but again this turned out to be difficult to measure due to the low number of candidates.

One other relevant factor was the “Girl I Guess” progressive voter guide that has been a detectable presence in the two most recent November retention elections. It influenced roughly six percent of the vote. This is an impressive achievement for a single individual, but it was not part of any larger grassroots movement that was the primary cause of anyone’s victory or defeat.

So what was the biggest single influence? Amazingly, bar association ratings.

This was a first for any primary in Cook County’s history. Just as with slating, there is a reliable segment of the electorate that votes based on independent evaluations of judicial candidates. Usually the percentage size of this segment reaches double digits, although in the three previous primaries it did not. In this primary, between the Chicago Bar Association’s ratings and those of the Alliance of Bar Associations, candidates who held or shared higher ratings than their opponents gained an advantage of a whopping 29 percentage points.

With one very marginal exception (Paul Joyce had one more HR rating than Michael Weaver), all twelve countywide contests were won by candidates who held or shared the highest bar ratings in their contests. And only three of the sixteen subcircuit winners had lower bar ratings than their opponents. Two of those three were in subcircuits where bar ratings have always had little or no impact (the 1st and the 14th), and the third was the Raines-Welch victory in the 4th, which was dominated by name recognition and a huge campaign fund.

To be clear, the 29 percent figure represents only about 120,000 voters, only a fraction of the number of information-using voters in the 2018 and 2020 retention elections. The high percentage is in part due simply to the low overall turnout. But what makes the figure remarkable is that it was done with no help from either of the major Chicago newspapers. The Tribune and Sun-Times both completely ignored the judicial part of the ballot, providing no endorsements of their own and not even reporting bar association ratings. This was the first time in at least a half-century (and likely much longer) that the Chicago print media offered no voter guidance in a judicial election.

In analyzing the 2018 and 2020 retention elections for FWIW I noted evidence that the Internet and smartphones seemed to be driving an increase in information-based voting on retention judges. This primary further suggests that the ease of access to websites and search engines, even while in the voting booth, is becoming an important influence on judicial voting in Cook County. Of course, this depends on voters being motivated to seek out information in the first place, but in the current climate of concern over criminal justice issues, some voters clearly have the motivation.

Finally, two bits of fine print. One is that all of the percentage figures cited above are statistical estimates with margins of error, but all except for those I indicated as uncertain are formally statistically significant. Two, the analysis does not account for campaign spending totals, which are unavailable at this time. Campaign spending can have a substantial impact on subcircuit contests and may have affected the subcircuit results discussed above, but that analysis will have to wait until the candidates’ campaign finance reports become publicly available.

Dr. Klumpp reports on 2020 Cook County judicial candidate spending

by Albert J. Klumpp

With the 2020 election cycle behind us, and with nearly all of the required candidate filings now on record, it was time for my biennial slog through the hundreds of campaign finance reports filed by judicial candidates here in Cook County.

As mentioned before here on FWIW, part of my research on judicial elections includes compiling campaign spending totals for all of Cook County’s judicial candidates. Originally these totals were gathered strictly to measure the impact of campaign spending on election results, but with the data set now covering every candidate dating back to 1980, it has proven useful on its own for examining trends in campaign activity over time.

As usual, my procedure was to review every expense item on every report, and calculate primary- and general-election totals for each candidate covering all relevant campaign spending. In calculating the totals, items reported as in-kind contributions are included, and irrelevant items are excluded (such as loan repayments that are technically required to be reported as expenditures).

Most likely there are still a few general-election expenditures still to be disclosed, on reports filed in the coming months. But with that minor asterisk, the figures are otherwise complete. Here is a summary of what they reveal.

Record setting spending for Supreme Court vacancy

The seven candidates for the Freeman vacancy on the Illinois Supreme Court spent a total of more than $5.4 million on their campaigns. Shelly Harris was by far the biggest spender at $2.1 million—most of that on broadcast media advertising—establishing a new record for spending by a Supreme Court candidate in Cook County. (Harris also holds the record for Appellate Court campaign spending, at an inflation-adjusted $1.1 million for his successful 2014 campaign.) Every candidate, though, spent at least $290,000 and six of the seven spent $480,000 or more.

Figure 1 compares the primary-election spending in the Freeman contest to that of previous primaries for supreme court vacancies in Cook County. The older figures are inflation-adjusted into November 2020 dollars to provide a proper comparison.

Lower Courts reach new high in spending in 2020

The remaining 110 candidates for Appellate Court (6) and Circuit Court (104) vacancies spent a total of $9.2 million. Two years earlier a total of $8.7 million was spent (coincidentally also by 110 candidates), setting a new high for a single election cycle. That amount was eclipsed in 2020.

The ten biggest spenders in Circuit Court contests for countywide and subcircuit vacancies were:

The most significant figures among the Circuit Court candidates are the record-breaking totals in the two general election contests for the vacancies in the 12th and 13th subcircuits. The total general election spending by the Democrat and Republican candidate pairs was $674,000 in the 12th and $491,000 in the 13th, both far above the previous record of $271,000 in the 12th in 2004 (or $369,000 in 2020 dollars).

Frank DiFranco, a Republican running in a once-competitive subcircuit that has voted increasingly Democratic over the years, obliterated the previous total spending record for a Circuit Court candidate (James Shapiro, 2018, $491,000 / inflation-adjusted $507,000) but fell just short of victory in the general election. Susanne Groebner also surpassed the previous record, running successfully as a Democrat in the historically Republican but recently more competitive 13th Subcircuit.

Historical Trends

In the November/December 2019 issue of the CBA Record, I presented an analysis of my spending data, focusing on how spending behavior has changed over time. Figures 2 and 3 are taken from the Record article and show, respectively, median spending amounts by decade and numbers of candidates spending $100,000 or more by decade.

How do the 2020 numbers compare to these results? Median spending by countywide Circuit Court candidates was roughly $47,000, slightly below the previous decade’s median; the figure for subcircuit candidates was roughly $49,000, slightly above. There were only six appellate court candidates, too few for useful insight.

Individual election cycles can be variable enough to make year-to-year comparisons difficult; this in fact was the reason for the charts displaying decade figures instead of single-year figures. So the median amounts are not necessarily revealing. But consider the numbers of $100,000 spenders: In the entire decade of the 2010s there were 101 candidates who spent $100,000 or more on their campaigns. In 2020 alone there were 30 such candidates.

Figures 2 and 3 show that spending is has become a bigger and bigger part of judicial candidacies in recent years. And while research has found that spending has only the smallest, barely detectable impact on election results in countywide judicial contests, this has not discouraged countywide circuit and appellate candidates from spending as aggressively as subcircuit candidates (who, research has shown, receive a far greater electoral return per dollar).

The 2020 figures, while not conclusive on their own, show no sign that the increasingly aggressive spending of Cook County judicial candidates has yet leveled off.

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Albert J. Klumpp has been a generous and frequent contributor to FWIW over the years. A research analyst with a public policy PhD, Klumpp is the author of several scholarly works analyzing judicial elections including, most recently, "Evaluating Judicial Merit Selection," in the November 2020 issue of Arizona Attorney (the link will take you the magazine website; you'll have to click around a bit to access the article). The CBA Record article referred to in the article above is "Campaign Spending in Cook County Judicial Elections."

Illinois adopts prejudgment interest in tort cases: Part 2 -- a look at the statutory language

Updated June 4, 2021

It turns out that Gov. Pritzker vetoed the bill discussed in this post on March 25 -- the same day that the legislature passed a different prejudgment interest bill. For more about the bill that actually became law, see this post.

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For Part 1 of this article, scroll down or click here.

A Google search Friday revealed that, according to the FDIC, as of August 27, 2020, the national average for interest paid on savings accounts is 0.05% -- higher for online banks, perhaps, but lower at traditional brick and mortar banks. So 9% would be better -- 180 times better than the national average.

The interest rates on most judgments in Illinois has long been 9% per annum (6% on judgments against governmental entities). Judgments, when and if collectible, are a great investment. The key words here, however, as so many of us have learned to our great sorrow, are "when and if collectible."

The high post-judgment interest rate is the reason why appeal bonds are typically set at 150% of the judgment amount. (Illinois Supreme Court Rule 305(a) provides, in pertinent part, "The bond or other form of security ordinarily shall be in an amount sufficient to cover the amount of the judgment and costs plus interest reasonably anticipated to accrue during the pendency of the appeal.")

HB3360 was actually the second change made by the 101st General Assembly to §2-1303 of the Code of Civil Procedure. The first came in P.A. 101-168, effective January 1, 2020, which added a subsection (b) to §2-1303. Widely touted as a pro-consumer enactment, P.A. 101-168 lowered the interest rate, to 5%, for judgments on "consumer debt," such as credit card defaults. And it passed just in time for the destruction of the economy, too. But so many judgments of this kind fall into the not collectible category that the lowered interest rate (still, as you presumably noticed, 100 times the national average for savings acounts) was largely symbolic.

The changes made to §2-1303 this week add new sections (c) through (f). Here is the new language:

 (c)  In all actions brought to recover damages for personal injury or wrongful death resulting from or occasioned by the conduct of any other person or entity, whether by negligence, willful and wanton misconduct, intentional conduct, or strict liability of the other person or entity, the plaintiff shall recover prejudgment interest on all damages set forth in the judgment. Prejudgment interest shall begin to accrue on the date the defendant has notice of the injury from the incident itself or a written notice. In entering judgment for the plaintiff in the action, the court shall add to the amount of the judgment interest on the amount calculated at the rate of 9% per annum.

 (d)  Notwithstanding any other provision of law, a local public entity is not liable to pay prejudgment interest in an action brought directly or vicariously against it by the injured party.

 (e)  For any personal injury or wrongful death occurring before the effective date of this amendatory Act of the 101st General Assembly, the prejudgment interest shall begin to accrue on the later of the effective date of this amendatory Act of the 101st General Assembly or the date the alleged tortfeasor has notice of the injury.

 (f)  The trial court may, in its discretion, apportion any amount of prejudgment interest between the plaintiff and any agency or department of the State. In apportioning prejudgment interest as provided in this Section, the court shall consider, among other factors it deems relevant, the plaintiff's hardship from the time of injury to the date of judgment and the effort required to obtain the judgment.

Note that local governments are exempt from prejudgment interest under new §2-1303(d).

And while prejudment interest will start accruing in all pending Illinois tort cases just as soon as the Governor signs the bill (and the objections of the Illinois Insurance Association notwithstanding, I think the Governor's approval will be swiftly forthcoming) prejudgment interest is not retroactice. It begins to accrue from and after the date that this bill becomes law. A paragraph or two about the amount of prejudgment interest owed will be added to every demand letter written from here on out.

But will prejudgment interest make a real difference in the actual amounts paid by insurers in tort cases? For Illinois PI attorneys, the fact that damages in their cases will soon begin 'earning' interest may ameliorate, at least to some extent, their frustration at being unable to get meaningful jury trial dates so long as this Never Ending Pandemic persists. It's not because plaintiffs' lawyers are all necessarily panting to try cases. Non-lawyers may be surprised to learn that most civil cases are settled or otherwise disposed of without trial.

In fact, I was taught that a lawyer who tries a case has already lost, even if he or she wins a verdict. Trials may be fun (I have usually found this to be true, at least once a trial finally gets underway, after all the last-minute motions and posturing) but they are all-consuming. The lawyer in a trial is not settling other cases, or signing up new ones. And I know it is an article of faith among the plaintiffs' bar that insurers generally try to stall every case until prospective jurors are herded into the courtroom, but that's not been my experience: While there are well-known and infamous exceptions, in 40+ years at the bar, many of them representing persons and business entities on behalf of insurance companies, I have found that most insurance companies take a dim view of settling cases at the 11th hour. Defense costs soar during the last few weeks before trial. And I have heard more than one adjuster berate defense counsel for advocating a last-minute settlement, accusing counsel of milking every last tenth-of-an-hour out of a file before recommending settlement. Plaintiffs' lawyers are not wrong when they assert that insurers try and maximize profits -- insurance companies are not charitable institutions -- but most insurers do this by trying to identify which cases should be settled at the earliest possible date. Otherwise they pay defense costs and the cost of settlement.

Admittedly, the suspension of trials changes has changed the normal calculus -- open-ended delay is a fact of life at present and, until now, there has been no adverse consequence to defendants and their insurers arising from same. Moreover, the setting of a case on a date certain for trial is necessary for some insurers to more seriously evaluate their exposure... and reach for their checkbooks (remember that defense costs soar in the weeks and months before trial). So, in the short term, probably, prejudgment interest will be a boon to the plaintiffs' bar.

But long-term? Though prejudgment interest in tort cases has long been an objective of the Illinois Trial Lawyers Association, I am not certain that the prospect of prejudgment interest will cause most carriers to actually put more dollars on their files.

I can think of two categories of tort cases in which the new amendments to §2-1303 would potentially increase settlements or judgments, and they are typically viewed as being at the opposite ends of the litigation food chain: medical malpractice cases and soft tissue auto accident cases where a substandard carrier insures the defendant. These are not coinicidentally the two most common types of tort cases to go to trial. In soft tissue cases with substandad carriers, the prospect of prejudment interest may prompt some behavior modification -- the low-ball final settlement offer may come sooner, or be made in a few more cases. But substandard carriers and med mal carriers take their very different types of cases to trial for the same reason: They generally do pretty well. There's no interest to pay on a defense trial verdict.

There will be some contention that this enactment, which at least potentially increases costs to Illinois insurers, will actually increase costs to Illinois insureds. There is an argument to be made that almost any action taken by our General Assembly leads to an increase in insurance rates.

But other events, including in particular large claim payouts after the "unrest" of this past summer, and the unprecedented surge in carjackings, will drive insurance costs up much farther and faster than the adoption of prejudgment interest.

Many other states have adopted prejudgment interest and insurers have somehow managed to do business in them. A 2015 survey done by Cozen O'Connor, linked here, may be a bit dated, but it suffices to show that Illinois is hardly alone in adopting some sort of prejudgment interest regime in tort cases. That probably won't stop the Judicial Hellhole folks from castigating our legislature on this issue, but I think the General Assembly will not crumble under criticism from that quarter.

On balance, at least in my opinion, the most alarming thing about prejudgment interest is not the concept itself, but the way in which it was adopted. Of course, I think the General Assembly will not crumble under this criticism either.

The Longest Election: Dr. Klumpp analyzes the Cook County judicial retention results

by Albert J. Klumpp

Two years ago Cook County experienced an election that was different from any other in its 54-year history of retention voting. Last month’s election, while not a carbon copy of 2018’s, had many of the same basic characteristics and indicates that what happened in 2018 was more than just a flash in the pan.

Concern over police misconduct and wrongful convictions continued to drive higher-than-normal levels of attention to the retention part of the ballot. Voter participation on retention judges was 70.02%, roughly equal to that of 2018 but reaching just above 70% for the first time ever.

Most of the past fluctuations in participation can be tied to changes in voting systems and ballot designs. 2018 and 2020 together are only the second instance of participation changes attributable to a substantive public policy matter (the other being the Operation Greylord investigation of the 1980s). Evidence of this is that nearly all of the 2018-2020 increase is attributable to Chicago voters and not suburban voters. Historically a higher proportion of city voters has skipped the retention part of the ballot compared to suburban voters, but in 2018 and this year, city participation rose to nearly equal suburban participation.

The base approval rate for the entire set of judges—that is, the rate for a judge with no name-cue advantages or informational disadvantages--was 75.3 percent, a historically typical figure and essentially unchanged from 2018’s 75.4 percent. Female judges had their best election ever, with a 3.5 point advantage relative to male judges. Historically their advantage had been 1.5 to 2 percentage points but began creeping upwards more recently, jumping to 3.4 points two years ago.

On the other hand, there was no significant racial/ethnic vote. Typically there is a small but detectable bump for having a recognizably Irish, African-American (based on US Census data) or Hispanic surname. But while 2018 saw one- to two-point bumps in all three categories, nothing of the sort was detectable this year. Certain wards and townships showed expected preferences--Irish names in the 19th Ward; Hispanic in Cicero Township; African-American on the South Side—but in the overall countywide numbers there was no meaningful advantage.

The most important characteristic of the 2018 election was the substantial use of voter information. Nearly one-third of the 2018 retention electorate (32.7%) voted based on some source of information—a newspaper or bar association, a social media guide, or one of the political or community campaigns against Matthew Coghlan. This year, despite the larger turnout typical of a presidential election, information use held relatively steady at 31.9%. Both of these elections eclipsed the previous high of 22.0% in 1988.

While the 2018 and 2020 figures are similar, their composition differs. One difference is a decrease in the county Democratic party’s influence. In 2018 roughly seven percent of the electorate followed the party’s instructions to support all judges except Coghlan. This year its influence was less than three percent, albeit with a larger electorate. The wards and townships where the party’s influence was greatest were largely the same in both elections, but the overall effect was lower throughout. Negative publicity over the Michael Toomin controversy undoubtedly hurt the party, but another factor may have been a decrease in the overall number and timing of party mailers (still looking for information to confirm or refute this).

In contrast, there was an increase in the impact of social media. The “Girl I Guess” voter guide that emerged in 2018 remained influential this year, with an estimated 4.2 percent effect (versus estimated 3.4 percent in 2018, likely but not provably higher). In addition, a bare-bones “Chicago Voter Cheat Sheet” prepared by two city political activists was statistically detectable in every city ward except the 41st, and had an overall impact of roughly 2.6 percent countywide. Together the two guides had a larger impact than any single bar association or newspaper.

As for bar associations, the ISBA’s ratings emerged in 2018 and 2020 to become an influential information source, worth roughly 3.5 percentage points in both elections. More media outlets have reported ISBA ratings in recent years and their reporting is having an effect. For instance, the suburban Daily Herald newspapers, which in the past had tended to report CCL or Alliance ratings in their pre-election coverage, instead emphasized ISBA ratings in both 2018 and 2020. In all of the suburban townships where the Herald newspapers circulate, ISBA ratings this year showed an influence of between six and eight percentage points.

Ratings from the CBA and Chicago Tribune measured in the 5-6 point range, as they did in 2018. There also was evidence, as in 2018, of Alliance ratings having a small but detectable influence where little or none besides the CCL’s ratings could be detected in prior years. This is difficult to pin down precisely because of the number and similarity of the ratings among all of the bar associations, but overall the numbers do suggest, as they did two years ago, that the Internet and mobile devices are being used by increasing numbers of voters to access information from more different sources than in the past.

Finally, the usual bit of fine print: the statistical estimates reported here are just that—estimates—and have margins of error, but all are considered highly statistically significant.

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Albert J. Klumpp has been a generous and frequent contributor to FWIW over the years. A research analyst with a public policy PhD, Klumpp is the author of several scholarly works analyzing judicial elections including, most recently, "Evaluating Judicial Merit Selection," in the November 2020 issue of Arizona Attorney (the link will take you the magazine website; you'll have to click around a bit to access the article). Closer to home, Klumpp's recent publications include "Campaign Spending in Cook County Judicial Elections," CBA Record, Nov.-Dec. 2019 (p. 30)