Earlier this month, the Seventh Circuit Court of Appeals decided a case involving allegations that a candidate for public office orchestrated a plan to put two other candidates on the ballot to split voters and ensure a victory. The case, Gonzales v. Madigan, No. 20-1874, 2021 WL 857476 (7th Cir. Mar. 8, 2021), could have many implications for challenges to tactics used during an election.

The litigation involved a 2016 primary election in which Michael Madigan, a state representative who had served as an elected official since 1971 and as the Speaker of the Illinois House of Representatives for all but two years from 1983 to 2021, was running for re-election in the Democratic primary. Madigan had won every election comfortably throughout his career, and often did not face any competition, both in primaries and general elections. In 2016, three other Democratic candidates challenged him: Jason Gonzales, Grasiela Rodriguez, and Joe Barboza. Madigan won the primary by a substantial margin, winning 65% of the votes, while Gonzales received 27%, Rodriguez 6%, and Barboza 2%. Gonzales then sued Madigan, arguing that the other candidates were placed on the ballot by Madigan’s political allies to divide the Hispanic vote, thereby ensuring Madigan’s victory. This alleged tactic is known as running “stalking horse” candidates.

Gonzales’ claim relied extensively on a case from 1973, Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973). In Smith, a candidate (Cherry) won the Democratic primary election in a crowded field, then withdrew his candidacy following the primary. The local party committee members then selected a new candidate to compete in the general election (Palmer). One of the primary candidates who lost alleged that the Democratic party only put Cherry on the ballot to win the primary so that the party could then choose which candidate it wanted to run in the general election. The Smith court reasoned that if the allegations were true, voters “who thought they were voting for Cherry were as a practical matter voting for whomever the Committeemen might thereafter select; in effect, votes intended for Cherry were really votes for Palmer. This deception on the face of the ballot clearly debased the rights of all voters in the election.” 489 F.2d at 1102. Consequently, the Seventh Circuit held that “[s]uch an abridgment of the right to vote is impermissible” under the 14th Amendment’s Equal Protection Clause. Id. Notably, because Smith reviewed a district court order granting a motion to dismiss, in that case the Seventh Circuit only evaluated whether the allegations could form a basis for a valid claim. Regardless of the procedural posture of the district court action it reviewed, however, Smith stands for the proposition that the 14th Amendment allows candidates to raise “stalking horse” claims as a basis for a violation of the Equal Protection Clause.

Unlike in Smith, the Gonzales case came to the Seventh Circuit on an order granting summary judgment for the defendants. The district court had held that based on the evidence submitted on summary judgment, the defendants were entitled to judgment on Gonzales’s claims. Addressing the plaintiff Gonzales’s argument that Smith controlled his claims, the Gonzales court held that Smith did not apply because the conduct at issue in that case was distinguishable from Madigan’s alleged conduct, and consequently, that Gonzales did not have a valid claim. The court determined that an essential element of the Equal Protection claim recognized in Smith was that voters had to be “hoodwinked” or actually deceived by a candidate’s actions. In Madigan’s election, the Seventh Circuit reasoned, Gonzales had actually made speeches, took out advertisements, and even wrote an op-ed in a newspaper alleging that Madigan had placed the other two candidates on the ballot to split the Hispanic vote. Therefore, the court held, voters could not have been hoodwinked because Gonzales had made the allegations public prior to the election.

The Seventh Circuit’s opinion might not be particularly noteworthy if it had ended there. And indeed, Judge Easterbrook, writing for the court, acknowledged that at point in the opinion: “That’s all we need to say.” But the opinion did not stop there, instead continuing on to question the validity of Smith. In particular, Judge Easterbrook noted that Smith does not explain why it held that political deceit violated the Equal Protection Clause. He opined that political campaigns are inherently a dirty game, where one side may think a strategy brilliant, while the opposition views it as a devious trick. In Judge Easterbrook’s opinion, voters, as opposed to judges, should decide on the ballot when one side goes too far. He went so far as to say, “[t]he Constitution does not authorize the judiciary to upset that outcome or to penalize a politician for employing a shady strategy that voters tolerate.” The opinion then concluded by questioning whether Smith v. Cherry should be overruled.

This conclusion is the biggest takeaway from Gonzales. It signals that, whereas at one time the Seventh Circuit had seen a role for the federal judiciary in intervening when candidates for political office attempted to game the outcome of an election by deceiving voters, the current Seventh Circuit is skeptical that the judiciary has any role to play in disputes between political candidates relating to campaign tactics. The court now seems to believe that so long as information about the attempted deceit is made public, voters are presumed to be aware of the information and cannot sustain an injury under the Equal Protection Clause. Although Gonzales did not overrule Smith, it certainly calls into question its continuing viability, signaling the Seventh Circuit’s position that politics are messy, and as long as a candidate’s attempts to mislead voters are made public, candidates (and voters) have no legal recourse.

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