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 choose 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.
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