Gonzalez v. Madigan et al

Filing 299

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 8/23/2019: For the foregoing reasons, the Court grants the defendants' motion for summary judgment [dkt. no. 277]. The Court denies as moot the plaintiff's motions to strike the defendants' affirmative defenses [dkt. nos. 180, 181]. The Clerk is directed to enter judgment in favor of defendants and against plaintiff. Mailed notice. (pjg, )

Case: 1:16-cv-07915 Document #: 299 Filed: 08/23/19 Page 1 of 19 PageID #:5797

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JASON GONZALES,
Plaintiff,
vs.
MICHAEL J. MADIGAN, FRIENDS OF
MICHAEL J. MADIGAN, 13TH WARD
DEMOCRATIC ORGANIZATION, SHAW
DECREMER, SILVANA TABARES,
RAY HANANIA, JOE BARBOSA, and
GRACIELA RODRIGUEZ,
Defendants.

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Case No. 16 C 7915

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Jason Gonzales unsuccessfully challenged Michael J. Madigan, representative of
Illinois's 22nd district and the Speaker of the Illinois House of Representatives, in the
2016 Democratic primary election. Gonzales has sued Madigan and a number of other
individuals and organizations, alleging that they conspired to place two "sham"
candidates with Hispanic surnames on the ballot in an effort to dilute Gonzales's
electoral support. The defendants have moved for summary judgment.
Background
The following facts are undisputed except where otherwise noted. Since 1971,
Michael J. Madigan has represented Illinois's 22nd district on Chicago's southwest side.
He is the chairman of the Illinois Democratic Party and the Speaker of the Illinois House
of Representatives. Madigan has served as the House speaker for thirty-three of the

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past thirty-five years.
The legislative district Madigan represents geographically overlaps with parts of
Chicago's 13th Aldermanic Ward, which is represented by Madigan's political ally Marty
Quinn. Alderman Quinn served as Madigan's campaign manager in 2016. In addition,
Madigan serves as a 13th Ward committeeman—and, as such, manages political- and
election-related activities in the ward—and as the chairman of the 13th Ward
Democratic Organization, a private political organization.
A.

2016 Democratic primary election
Gonzales challenged Madigan in the 2016 Democratic primary. In addition to

Gonzales and Madigan, two other candidates' names appeared on the primary ballot:
Joe Barboza and Graciela Rodriguez. Gonzales contends that Madigan, acting through
associated individuals and entities, caused Barboza and Rodriguez to enter the race as
"sham" candidates whose purpose was to dilute Gonzales's support among Hispanic
voters. Madigan denies any involvement in efforts to recruit Barboza or Rodriguez to
run in the primary.
In support of his contention that Barboza and Rodriguez were sham candidates,
Gonzales points to evidence that individuals associated with Madigan encouraged them
to run—even though Madigan was in the race. For example, Kevin Quinn, the brother
of Alderman Marty Quinn, testified that Alderman Quinn authorized him to instruct a
third Democratic official to contact Barboza about entering the race. Similarly,
Rodriguez testified that she discussed the possibility of running with Jennifer Solski,
Alderman Quinn's assistant. Gonzales also contends that Barboza and Rodriguez
never actively campaigned. For example, Barboza and Rodriguez spent little or no

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money on the election and held no rallies.
Gonzales also cites Barboza's and Rodriguez's nominating petitions as evidence
that their candidacies were a sham. Under Illinois law, prospective candidates hoping
to appear on the primary ballot must obtain signatures on nominating petitions.
Volunteers or employees of the 13th Ward Democratic Organization—including socalled "precinct captains"—circulated Madigan's petitions. They also circulated petitions
for Rodriguez and Barboza—to run against Madigan, the chairman of the Organization.
Although Rodriguez and Barboza both testified that they did not know many of the
people who circulated petitions on their behalf, it is undisputed some of their circulators,
including Michael Kuba, Joseph Nasella, and Eugene Pagois, were also involved with
the 13th Ward Democratic Organization. And it is undisputed that former Madigan
staffer Shaw Decremer delivered Barboza and Rodriguez's nominating petitions from
Chicago to Springfield, Illinois, where they were filed with the Illinois State Board of
Elections.
During the campaign, Gonzales told multiple news outlets (including the Chicago
Sun-Times, WTTW, NBC Chicago, and the Wall Street Journal) that he believed
Barboza and Rodriguez were sham candidates who were on the ballot at Madigan's
behest. Madigan, for his part, testified that he believed that the then-governor of Illinois,
Republican Bruce Rauner, was financially supporting Gonzales's campaign.
The primary election was held on March 15, 2016. Out of a total of 26,320 votes,
Madigan earned 17,155, or about 65.2%. Gonzales received 7,124 votes (about 27%),
Rodriguez 1,523 (5.8%), and Barboza 518 (2%).
B.

Procedural history

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In August 2016, Gonzales filed the present lawsuit against a number of
individuals and organizations, including Madigan, Barboza, and Rodriguez, alleging that
they violated his constitutional rights under the First, Fourteenth, and Fifteenth
Amendments to the U.S. Constitution, as well as various provisions of Illinois law. The
defendants successfully moved to dismiss the federal claims, but the Court granted
Gonzales leave to amend the complaint with respect to all but one of the defendants.
See Gonzales v. Madigan (First Motion to Dismiss Ruling), No. 16 C 7915, 2017 WL
977007, at *5 (N.D. Ill. Mar. 14, 2017).
Gonzales amended his complaint. The Court initially dismissed the amended
complaint with prejudice, reasoning that "Gonzales cannot make allegations plausibly
supporting a contention that one or more of the defendants acted under color of state
law." Gonzales v. Madigan (Second Motion to Dismiss Ruling), No. 16 C 7915, 2017
WL 2653079, at *7 (N.D. Ill. June 20, 2017). On Gonzales's motion, however, the Court
vacated that judgment because it determined that it had applied the "color of state law"
requirement too narrowly. The Court then dismissed some but not all of Gonzales's
federal claims on different grounds and again granted leave to amend the complaint.
See Gonzales v. Madigan (Ruling Vacating Judgment), No. 16 C 7915, 2017 WL
3978703, at *5, *11 (N.D. Ill. Sept. 11, 2017).
Gonzales filed a second amended complaint. The defendants moved to dismiss
Gonzales's state law claims. The Court granted the motion with respect to Gonzales's
common-law tort claims in which he alleged defamation and false light but denied it with
respect to his state statutory claims. See Gonzales v. Madigan (Third Motion to Dismiss
Ruling), No. 16 C 7915, 2018 WL 1377910, at *3 (N.D. Ill. Mar. 17, 2018). As a result of

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that ruling, the remaining defendants are Madigan, Friends of Michael J. Madigan (a
Madigan-controlled political action committee), the 13th Ward Democratic Organization,
Decremer, Barboza, and Rodriguez. 1 In his remaining claims, Gonzales alleges that
each of the defendants violated the Equal Protection Clause and 42 U.S.C. § 1983
(counts 3, 9, 15, 23, 27, 33, and 35); engaged in a conspiracy under section 1983
(count 37); conspired to prevent voting under 10 Ill. Comp. Stat. 5/29–18 (count 38);
violated Illinois's statutory analogue to section 1983, 10 Ill. Comp. Stat. 5/29–17, by
infringing Gonzales's rights under the federal constitution (count 39); and engaged in a
conspiracy to interfere with civil rights in violation of 42 U.S.C. § 1985(3) (count 40).
The defendants have moved for summary judgment.
Discussion
Summary judgment is appropriate if "there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law." Giles v.
Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019). The Court does not "assess the
credibility of witnesses" or "balance the relative weight of conflict evidence," but instead
views "all the evidence in the record in the light reasonably most favorable to the
nonmoving part[y]." Palmer v. Franz, 928 F.3d 560, 565 (7th Cir. 2019). To withstand
summary judgment, Gonzales must "present specific facts establishing a material issue
for trial, and any inferences must rely on more than mere speculation or conjecture."
Giles, 914 F.3d at 1048.

1

Silvana Tabares, a former Illinois state representative and current alderman of
Chicago's 23rd Ward, and Ray Hanania, a political journalist, also remain as defendants
in this case. It appears from the complaint and the parties' briefs, however, that none of
the claims relating to Tabares and Hanania concern their alleged statements about
Gonzales's criminal record that remain in the case.
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The defendants contend that they are entitled to summary judgment because the
federal constitution provides only limited recourse for misconduct during elections. As
the Seventh Circuit explained in Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th
Cir. 2018), "[i]t is impossible to imagine the judiciary attempting to decide when a
politically retaliatory step goes 'too far' without displacing the people's right to govern
their own affairs and making the judiciary just another political tool for one faction to
wield against its rivals." Id. at 939. The court further observed that "[a]ny effort by the
judiciary to stop one politician from proposing and advocating steps that injure another
politician would do more to violate the First Amendment (the right to advocate one's
view of good policy is the core of free speech) than to vindicate the Equal Protection
Clause." Id. The Seventh Circuit has repeatedly expressed similar wariness about
involving federal courts in state election disputes. See Manley v. Law, 889 F.3d 885,
889 (7th Cir. 2018) ("The Constitution does not guarantee good feelings or regulate
manners in political disputes."); Parra v. Neal, 614 F.3d 635, 637 (7th Cir. 2010) ("When
a plaintiff invokes § 1983 in federal court to challenge the conduct of a state or local
election, the district court must balance the protection of the right to vote enshrined in
the First and Fourteenth Amendments with the avoidance of excessive entanglement of
federal courts in state and local matters."); Dieckhoff v. Severson, 915 F.2d 1145, 1148
(7th Cir. 1990) (noting the need to avoid "excessive entanglement of federal courts in
state and local election matters"); Bodine v. Elkhart Cty. Election Bd., 788 F.2d 1270,
1272 (7th Cir. 1986) ("[F]ederalism concerns caution against excessive entanglement of
federal courts in state election matters.").
Gonzales argues that his claims should nonetheless withstand summary

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judgment under the Seventh Circuit's decision in Smith v. Cherry, 489 F.2d 1098 (7th
Cir. 1973), in which the court held that the plaintiff could pursue his claim that the use of
sham candidates in a state election violated the Equal Protection Clause. Alternatively,
Gonzales contends that a reasonable jury could find that the defendants discriminated
against him as an individual—that is, as a "class of one"—for reasons unrelated to a
legitimate government interest under Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995).
A.

Smith v. Cherry
Gonzales first argues that a reasonable jury could find that the defendants'

alleged election fraud violated his constitutional rights under Smith v. Cherry. In that
case, the main plaintiff, Ronald Smith, had unsuccessfully challenged the defendant,
Robert Cherry, in the Democratic primary election for the office of state senator. Smith,
489 F.2d at 1099–100. Smith alleged that Cherry had conspired with the district's
senatorial committee to run as a stand-in candidate who, when he won, would withdraw
his candidacy to allow the committee to appoint a different person as the Democratic
nominee. Id. at 1100. The Seventh Circuit held that the plaintiffs' allegations were
sufficient to state a claim under the Equal Protection Clause. Id. at 1103. The parties
agree that Smith represents an exception to the general principle that a candidate's
misconduct in state and local elections does not give rise to a justiciable claim under the
Equal Protection Clause. They dispute, however, whether Smith allows Gonzales to
withstand summary judgment given the evidence of record in this case.
The defendants contend that Smith imposes four requirements for Gonzales's
claim under the Equal Protection Clause: (1) the ballot must include a "sham"
candidate, defined to mean a candidate who has promised to step down in favor of

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another person if elected; (2) the fraud must be undisclosed; (3) there must be a
reasonable possibility that the sham candidacy affected the outcome of the election;
and (4) the alleged misconduct must constitute state action. See Defs.' Brief in Supp.
Mot. for Summ. J., dkt. no. 278, at 10–11. Gonzales, by contrast, argues that a claim
under Smith requires him to show only that the defendant denied him "an equal
opportunity to win votes" and that voters "suffered an unequal burden on their right to
cast their votes effectively." Smith, 489 F.2d at 1102.
1.

Effect on electoral outcomes

The defendants argue that they are entitled to summary judgment on Gonzales's
claim under Smith because no reasonable jury could find that it was possible that the
alleged sham candidates affected the outcome. They point to Madigan's wide margin of
victory—he won more than 65% of the total votes—as well as expert testimony
regarding voters' stated preferences as evidence that the alleged fraud was ultimately
immaterial.
The defendants' argument depends on a misreading of Smith. In relevant part,
the Seventh Circuit stated that if the plaintiffs "show a reasonable possibility that
Cherry's sham candidacy affected the outcome of the election, then the district court
should order new primary and general elections." Smith, 489 F.2d at 1103. This
reference to the effect on the election's outcome implicates what relief would be
appropriate if the plaintiff were to prevail, but nothing in Smith or subsequent cases
suggests that a plaintiff must prove the likely effect of the fraud to demonstrate a
constitutional violation. To the contrary, the Seventh Circuit has explained that
an election is more than just a sum total of votes. It is also about the act
of voting—an individual's ability to express his or her political preferences
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at the ballot box. An official who willfully interferes with this act violates
the Constitution, regardless whether the vote would have affected the
election outcome.
Kozuszek v. Brewer, 546 F.3d 485, 490 (7th Cir. 2008). Applying Kozuszek, a
reasonable jury could find that the defendants' alleged misconduct affected the act of
voting by altering the makeup of the primary ballot even if it did not influence who
became the Democratic Party nominee. 2 The defendants' argument therefore does not
provide a basis for granting summary judgment.
2.

Nature of the sham candidacies

The defendants next contend that no reasonable jury could find that Barboza and
Rodriguez were "sham" candidates within the meaning of Smith. Specifically, they point
out that the alleged fraud in Smith involved a conspiracy between the candidate and the
Democratic Party political organization for the candidate to withdraw his name after
winning so that the organization could appoint its preferred nominee. The defendants
contend that summary judgment is appropriate because there is no evidence that
Barboza or Rodriguez made a similar agreement to step aside; indeed, Gonzales
appears to concede in his response to the motion for summary judgment that Barboza
and Rodriguez would have stayed in the race through the general election if either
candidate had won the Democratic nomination. Pl.'s. Resp. to L.R. 56.1 Stmt., dkt. no.
291, ¶ 71; Pl.'s Resp. Br., dkt. no. 292, at 8 (arguing that an agreement to bow out of
the election "would have been superfluous").
As an initial matter, the Court concludes that a jury viewing the evidence in the

2

It is undisputed that Gonzales voted in the 2016 Democratic primary election. He thus
would have standing to challenge the election misconduct as a voter who "suffered an
unequal burden on [his] right to cast [his] vote[] effectively." Smith, 489 F.2d at 1102
(internal quotation marks omitted).
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light most favorable to Gonzales could reasonably find that the defendants solicited
Barboza and Rodriguez to run and helped circulate their nominating petitions in an effort
to confuse or otherwise dilute Gonzales's support among Hispanic voters and perhaps
others. Kevin Quinn testified that his brother, Madigan's campaign manager Alderman
Marty Quinn, authorized him to solicit Barboza's candidacy. And Graciela Rodriguez
testified that she spoke about the possibility of running with Jennifer Solski, Alderman
Quinn's assistant. Based on this testimony, a jury could reasonably conclude that
individuals closely tied to Madigan's campaign manager convinced Barboza and
Rodriguez to enter the race—against Madigan. Madigan testified that he and Alderman
Quinn worked together closely in daily conversations on problems and issues in the
campaign. This evidence supports a reasonable inference that Madigan authorized or
at least was aware of the recruitment effort. And the evidence concerning the
circulation of Barboza and Rodriguez's nominating petitions, particularly the involvement
of 13th Ward Democratic Organization precinct captains, provides additional support for
Gonzales's allegations. To put it succinctly, a reasonable jury could find that Barboza
and Rodriguez's purported candidacies for Madigan's office were orchestrated by
Madigan's associates, working on Madigan's behalf. Thus the question is not whether
Barboza and Rodriguez appeared on the ballot as a result of the defendants' efforts—a
reasonable jury could so conclude, which is the limit of Court's inquiry at this stage—but
rather whether the evidence is legally sufficient to allow Gonzales to prevail under
Smith.
Turning to the governing law, it is not clear from the Seventh Circuit's reasoning
in Smith that Gonzales must prove that Barboza and Rodriguez intended to step down.

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The defendants point to the court's observation that "votes intended for Cherry were
really votes for Palmer." Smith, 489 F.2d at 1102. But the court also stated that the
alleged conspiracy violated Smith's and the voters' constitutional rights because it
constituted a "deception on the face of the ballot." Id. Gonzales argues that a
reasonable jury could find that the defendants propagated such a deception by adding
to the ballot candidates with Hispanic surnames whose sole purpose in running was to
detract from Gonzales's electoral support. The defendants respond that this alleged
deception is insufficient unless, as in Smith, those candidates were truly stand-ins—i.e.,
individuals who ran in the primary with no intention of staying in the race through the
general election in the event they became the party's nominee.
The defendants' argument finds some support in Rudisill v. Flynn, 619 F.2d 692
(7th Cir. 1980), in which the Seventh Circuit appears to have limited the scope of Smith.
In Rudisill, the court considered whether Smith permitted a suit alleging that the
defendants first persuaded a local government to place a public referendum on the
ballot, the passage of which would financially benefit the defendants, then lied to the
voting public about the merits of the ballot measure. The court distinguished Smith by
observing that "a vote for the sham candidate whose name appeared on the ballot was
really a vote for another undisclosed person," which provided the necessary "nexus
between the defendants' alleged misrepresentations and the ballot." Id. at 694. At least
one other district court (outside this circuit) has characterized an agreement to withdraw
as an essential element of a sham candidacy under Smith. See Block v. Marino, 918 F.
Supp. 349, 353 (S.D.N.Y. 1993).
It is not clear, however, that the opinion in Rudisill limits claims under Smith to

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cases in which sham candidates agreed to drop out after prevailing in the primary. The
court in Rudisill identified the "crucial factors" in Smith, which were "that (1) the fraud
was intimately connected with the ballot, (2) had the purpose and effect of deceiving
voters as to the actual effect of their votes, and (3) had the intended result of favoring
one relatively distinct group of voters over others." Rudisill, 619 F.2d at 694. Although
the court emphasized that in Smith the sham candidates' agreement to withdraw
constituted a fraud intimately connected with the ballot, it did not hold that such an
agreement was the only actionable election fraud. Perhaps more importantly, this case
is distinct from both Rudisill and Smith in that the intent behind the alleged fraud was for
the sham candidates not to win but to lose. In contrast to Cherry (the defendant in
Smith), Barboza and Rodriguez's alleged role was simply to appear on the ballot and
siphon votes away from Gonzales rather than to prevail as a stand-in for the real
candidate. Under these circumstances, requiring Gonzales to prove that Barboza and
Rodriguez had agreed to drop out of the race would be altogether extraneous to the
design of the alleged scheme, whose success in no way depended on their victory.
Finally, requiring evidence that the sham candidates intended to withdraw would
have the effect of limiting Smith to its particular facts. Beyond the previously-cited
remarks in Rudisill, which admit of multiple interpretations, the Seventh Circuit has not
held that Smith is so confined. For that reason, the Court is reticent to adopt the
defendants' suggestion that a plaintiff may not prevail under Smith unless the sham
candidates expressly agreed in advance to step down. The defendants are therefore
not entitled to summary judgment on this basis.
3.

Publicity of the alleged fraud

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The defendants next argue that they are entitled to summary judgment on
Gonzales's claim under Smith because the alleged fraud was publicized during the
campaign. They point to Gonzales's statements, reflected in numerous articles
published in local and national news outlets, in which he alleged that Madigan or his
associates put Barboza and Rodriguez on the ballot to target Gonzales's base of
support. See, e.g., Paris Schutz, Michael Madigan Faces Primary Challenger Jason
Gonzales, WTTW, Dec. 22, 2015, Defs.' Ex. 14, dkt. no. 280–14 ("Gonzales says
[Barboza and Rodriguez] were planted by Speaker Madigan's operation to dilute the
Hispanic vote, which makes up the overwhelming majority of the district.").
The defendants again rely on Rudisill, in which the Seventh Circuit interpreted
Smith to require that the alleged fraud "had the purpose and effect of deceiving voters
as to the actual effect of their votes." Rudisill, 619 F.2d at 694. In affirming the district
court's dismissal, the court explained, "The merits of a ballot issue are matters reserved
for public and private discussion and debate between opponents and proponents. It is
for the voters, not this court to decide whom to elect and what ballot issues to approve."
Id. The defendants contend that, under Rudisill, "as long as the truth is publicly known,
the objector's remedy is to use that truth to persuade voters at the ballot box." Defs.'
Brief in Supp. Mot. for Summ. J., dkt. no. 278, at 14.
Gonzales argues that Rudisill is distinguishable because that case concerned
alleged misrepresentations about the provenance and purpose of a particular ballot
measure, not the existence of a sham candidate. But the Seventh Circuit suggested
more recently in Jones that the principle of Rudisill should apply more broadly than
Gonzales contends. When a candidate for state office deploys dirty tricks in an election,

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the court in Jones held, "[t]he right response is political"—that is, "[t]he price of political
dirty tricks must be collected at the ballot box, rather than the courthouse." Jones, 892
F.3d at 939–40. The court reasoned that it "is impossible to imagine the judiciary
attempting to decide when a politically retaliatory step goes 'too far' without displacing
the people's right to govern their own affairs and making the judiciary just another
political tool for one faction to wield against its rivals." Id. at 939. Although the plaintiff
in Jones proposed a theory of liability under the Equal Protection Clause different from
the one on which Gonzales primarily relies, the Seventh Circuit's admonitions about the
risks of judicial intervention into electoral misconduct would appear to apply with equal
force in the context of a claim under Smith.
To the extent that the court in Smith recognized a category of claims challenging
electoral misconduct under the Equal Protection Clause, therefore, it stands in some
tension with the suggestion in Jones that judicial regulation of that misconduct is
generally improper. But these holdings can be reconciled by distinguishing cases
where the fraud remains hidden during the campaign from those in which the fraud is
publicized and widely communicated. The mechanism by which the Seventh Circuit in
Jones explained that voters can hold candidates to account for election misconduct
plainly does not apply to a case like Smith, where the alleged conspiracy to have the
sham candidate withdraw was hidden from the public until after the votes were cast.
The extent of the publicity of the misconduct can delineate cases of non-actionable
election misconduct from the types of fraud for which Smith provides a judicial remedy.
Applying these principles, the Court concludes that the undisputed fact that,
before election day, Gonzales publicized and campaigned on the allegation that

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Barboza and Rodriguez were sham candidates precludes his claim under Smith. In this
case, there is unrebutted evidence Gonzales made Madigan's deceptive tactics a
central issue in his campaign. See, e.g., Andy Grimm, Madigan Challenger Gonzales
Faces Uphill Climb to Unseat Speaker, Chi. Sun-Times, Feb. 29, 2016, Defs.' Ex. 16,
dkt. no. 280–16, at 1 ("Gonzales said having a pair of Latino-named, no-show
candidates on the ballot was the first in a string of dirty tricks he has faced since starting
his campaign against Madigan."); Mark Peters, Election 2016: In Chicago, Candidates
Battle Ghosts in the Machine, Wall Street J., Mar. 14, 2016, Defs.' Ex. 18, dkt. no. 28018, at 1 (quoting Gonzales as describing Madigan's alleged misconduct as "the oldest
trick in the book"). And these reports did not come only from Gonzales. In declining to
endorse either Gonzales or Madigan, the editorial board of the Chicago Sun-Times
stated that "two other names on the ballot—Joe G. Barboza and Grasiela Rodriguez—
are widely seen as inactive Madigan plants to divide the opposition." Our
Endorsements for the Illinois House, Chi. Sun-Times, Feb. 19, 2016, Defs.' Ex. 15, dkt.
no. 280–15, at 3. This publicity placed the alleged misconduct squarely within the
political realm, enabling voters to rebuke Madigan by electing his challenger. Cf.
Rudisill, 619 F.2d at 694 n.1 (noting that, "had the circumstances warranted, voters
would not have hesitated to draw an adverse inference" against the perpetrators of the
alleged misconduct). Instead, Madigan prevailed by a substantial margin. Under
Jones, the Court may not appropriately second-guess the voters' choice "without
displacing the people's right to govern their own affairs and making the judiciary just
another political tool for one faction to wield against its rivals." Jones, 892 F.3d at 939.
In reaching this conclusion, the Court does not hold that there is no constitutional

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limit on election-related misconduct whenever that misconduct is publicly known before
the votes are cast. In particular, the Court is cognizant that there is evidence from
which a reasonable jury could find that the defendants engaged in a deliberate effort to
interfere with voters' decision making. Such fraudulent interference in the form of sham
candidates might, in an appropriate case, undermine the ability of the electorate to hold
the offending candidate to account. But Gonzales has not pointed to evidence—or even
alleged—that the defendants' fraud prevented the voters from punishing Madigan at the
ballot box. Because Gonzales bears the burden of pointing to specific facts establishing
a material issue for trial, Giles, 914 F.3d at 1048, summary judgment is appropriate
under Jones.
B.

Class-of-one claim
Gonzales argues that even if his claim cannot survive under Smith, a reasonable

jury could nonetheless find that the defendants violated his constitutional rights by
discriminating against him as a "class of one." The Seventh Circuit has explained that a
class-of-one claim is "best understood to provide a kind of last-ditch protection against
governmental action wholly impossible to relate to legitimate governmental objectives."
Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995). Whether Gonzales's claim can
withstand summary judgment depends on whether he has introduced evidence from
which a reasonable jury could find that the kind of governmental action being
challenged lacked a rational basis. See Village of Willowbrook v. Olech, 528 U.S. 562,
564 (2000); Jones, 892 F.3d at 939 ("[G]overnmental action in class-of-one situations
requires a rational basis.").
The Court need not decide this question, however, because Gonzales's class-of-

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one theory is forfeited. Gonzales raised this argument for the first time in his opposition
to summary judgment. Although he is not necessarily precluded from raising new legal
theories in a summary judgment brief, see Chessie Logistics Co. v. Krinos Holdings,
Inc., 867 F.3d 852, 859 (7th Cir. 2017), Gonzales's argument is too cursory to constitute
a basis for denying the motion for summary judgment. It is limited to a single paragraph
in which he does not attempt to explain what evidence would permit a reasonable jury to
find that the defendants lacked a legitimate governmental objective. The only case he
cites is Esmail, which concerned an entirely different context in which a government
official engaged in a course of harassment out of sheer malice. See Esmail, 53 F.3d at
179 ("If the power of government is brought to bear on a harmless individual merely
because a powerful state or local official harbors a malignant animosity toward him, the
individual ought to have a remedy in federal court."). Esmail is entirely unhelpful to
Gonzales's case, as he has not argued or pointed to evidence that the defendants'
conduct was motivated by malice or personal animosity. Gonzales has thus forfeited
this "perfunctory and underdeveloped" argument. Batson v. Live Nation Entm't, Inc.,
746 F.3d 827, 833 (7th Cir. 2014); see also United States v. Giovannetti, 919 F.2d
1223, 1230 (7th Cir. 1990) ("A litigant who fails to press a point by supporting it with
pertinent authority, or by showing why it is a good point despite a lack of supporting
authority or in the face of contrary authority, forfeits the point."); cf. Jarrard v. CDI
Telecomm., Inc., 408 F.3d 905, 916 (7th Cir. 2005) (holding that underdeveloped
arguments were forfeited on appeal because the litigant's briefs lacked "citation to
relevant authority or meaningful argument").
C.

Defendants' remaining arguments

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The defendants also argue that they are entitled to summary judgment because
a reasonable jury could not find that the defendants acted under the color of state law or
that they were motivated by racial animus within the meaning of 42 U.S.C. § 1985(3).
The Court need not resolve these issues, however, because summary judgment is
appropriate for the reasons previously discussed. The Court's conclusion that Gonzales
cannot show that a reasonable jury could find that he suffered an actionable violation of
the Equal Protection Clause disposes of all his remaining claims. See Daugherty v.
Page, 906 F.3d 606, 612 (7th Cir. 2018) (noting that a plaintiff alleging a conspiracy to
violate section 1983 "must show an underlying constitutional violation and demonstrate
that the defendants agreed to inflict the constitutional harm" (internal quotation marks
omitted)); Dempsey v. Johnson, 2016 IL App (1st) 153377, ¶ 48, 69 N.E.3d 236, 252
(holding that a claim under 10 Ill. Comp. Stat. 5/29–17 for violation of a federal
constitutional right has the same elements as a claim under section 1983); Kowalski v.
Boliker, 893 F.3d 987, 1001 (7th Cir. 2018) (noting that a claim under section 1985(3)
requires proof of a conspiracy to deprive the plaintiff "of the equal protection of the
laws"); Third Motion to Dismiss Ruling, 2018 WL 1377910, at *3 (noting that both parties
have conceded that the claim under 10 Ill. Comp. Stat. 5/29–17 is analogous to the
claim under section 1983). Gonzales has not argued that his claim under 10 Ill. Comp.
Stat. 5/29-18, which prohibits conspiracies to interfere with voting, can survive
independently from his federal constitutional claims, and the defendants are thus
entitled to summary judgment on count 38 as well. See Burton v. Kohn Law Firm, S.C.,
No. 18–2059, 2019 WL 3757571, at *3 (7th Cir. Aug. 9, 2019) ("[T]o survive summary
judgment the nonmoving party must present evidence sufficient to establish a triable

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issue of fact on all essential elements of [his] case.").
In addition, because the Court concludes that the defendants are entitled to
summary judgment on all the remaining claims, the plaintiff's outstanding motions to
strike the defendants' affirmative defenses are moot. See dkt. nos. 180, 181; see also
Juniel v. Park Forest-Chicago Heights Sch. Dist. 163, 161 F. Supp. 2d 910, 911 n.1
(N.D. Ill. 2001) (denying as moot motions to strike in light of the grant of summary
judgment).
Conclusion
For the foregoing reasons, the Court grants the defendants' motion for summary
judgment [dkt. no. 277]. The Court denies as moot the plaintiff's motions to strike the
defendants' affirmative defenses [dkt. nos. 180, 181]. The Clerk is directed to enter
judgment in favor of defendants and against plaintiff.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: August 23, 2019

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