‘Dirty tricks’ that ‘undermine’ candidates aren’t a crime, Madigan attorneys argue

Political candidates have a constitutional right to run — no matter the reason — and “dirty tricks” are not a federal crime, lawyers for Illinois House Speaker Mike Madigan declared in a court filing this week.

That assertion comes in a federal case that alleges the powerful Southwest Side Democrat planted two “sham” candidates on the ballot, the central complaint of a lawsuit stretching into its third year.

An unsuccessful 2016 primary challenger to Madigan, Jason Gonzales, contends the head of the Democratic Party of Illinois planted fake candidates in the race to split the Hispanic vote in his Southwest Side district. Lawyers have worked hard to dissect Madigan’s political operations in the matter.

They notched a big victory in getting the 76-year-old political power broker to sit down for his first deposition ever, last September.

On Monday, Madigan’s lawyers — collectively with attorneys for the other defendants — advanced two defenses in the case: the First Amendment right “to participate in the political process,” and the “First Amendment right to seek access to ballot and run or office.”

While Gonzales’ attorneys claim the two candidates being on the ballot were “unlawful,” Madigan’s attorney Adam Vaught writes that both candidates, Joe Barbosa and Grasiela Rodriguez, had the First Amendment right “to seek access to the ballot and to run for public office.”

“As argued by Defendants in their Joint Brief in Support of Summary Judgment, Plaintiff, at best, alleges Barbosa and Rodriguez were spoiler candidates who would have served if elected, but whose presence on the ballot made it more difficult for Gonzales to win,” the lawyers argue in the filing. “But complaints about campaign strategies, even ‘dirty tricks’ that successfully undermine candidates are not actionable in federal court.”

“Even if Plaintiff’s allegations were true, Defendants’ purported conduct would be protected by the First Amendment,” the filing says.

In other words, dirty tricks count as free speech.

The filing states that defendants have the “right to engage in political activity in support of or opposition to a candidate for public office, and accordingly, any conduct by Defendants in support or opposition, whether alleged or otherwise, is protected.”

And while Madigan’s lawyers have long asserted Gonzales was a “plant” of the Illinois Republican Party and former Gov. Bruce Rauner — a claim both Gonzales and Rauner have denied — the filing this week notes that Gonzales’ attorneys claimed it was “completely legal” if he “affiliated and coordinated with the Republican Party” as a candidate in the primary election.

At the same time, Madigan’s lawyers note, Gonzales attorneys are claiming Barbosa and Rodriguez should not have been allowed to run “because their intent was to take votes from Plaintiff.”

“But there is no intent requirement to run for office under Illinois law,” attorneys state in the filing.

Madigan beat Gonzales 65.2 % to 27.1 %. Rodriguez got 5.8 % and Barbosa 2%.

The Illinois State Board of Elections shows a different spelling, Barboza, for the latter candidate’s name.

The Constitution has been at the forefront of the case since it was filed back in 2016. And in reinstating the federal case in September 2017, U.S. District Judge Matthew F. Kennelly said a constitutional issue may arise with Gonzales’ claim that there was “vote dilution” in the alleged placement of two fake candidates on the ballot.

“The fact that Gonzales argues the effect of this fraud was to dilute the Hispanic vote — the two alleged sham candidates have Hispanic surnames — does not negate the fact that the registration of sham candidates can, on its own, constitute a deprivation of a constitutional right,” Kennelly wrote in 2017.