Free Speech

Malice or Incompetence?

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From Raila v. Cook County Officers Electoral Bd., decided Monday by Judge Thomas M. Durkin (N.D. Ill.):

An adage known as "Hanlon's Razor" says, in its most polite form, that we should not "infer malice from conduct that can be adequately attributed to incompetence." … [Such] "philosophical razors" are hardly foolproof, but an adage doesn't get a name by being wrong all the time….

Plaintiff Andrea Raila sued the Cook County Officers Electoral Board, the Chicago Board of Election Commissioners, and several members of both entities. Raila alleged that Defendants' conduct in the leadup to the 2018 Cook County Assessor Democratic primary, when Raila's candidacy was disqualified and then reinstated days before the primary, violated her due process rights, right to vote, and right of association….

[T]he Cook County Board disqualified Raila as a candidate for Assessor in February 2018. After the Circuit Court of Cook County rejected Raila's challenge to the Board's decision, Raila appealed to the Illinois Appellate Court.

While Raila's appeal was pending, the Cook County Board worked to inform voters that while Raila's name would appear on ballots (which had been printed before Raila's disqualification), she was not an official candidate for Assessor. Two weeks before the primary, the Board ordered that each election supply box (known as "Election Supply Carriers" or "ESCs") include hundreds of green notices to be handed to every voter, as well as several posters for display in each polling location, informing them that votes for Raila would not count. The green notice was also posted on the Cook County Clerk's Facebook page. The County Board further mailed over 40,000 blue absentee voter notices stating that votes for Raila would not count. In addition, eight days before the primary, the Chicago Board placed full-page ads in two newspapers with large circulation stating that votes for Raila would not count.

On March 14, 2018, six days before the primary, the Illinois Appellate Court reversed the County Board's decision. It remanded the case "solely for the purpose that the [County] Board fashion an appropriate remedy to ensure that votes cast for Raila at the March 20, 2018 Democratic primary are counted."

The County Board responded by printing new black-and-white notices for distribution at polling sites that removed the statement about votes for Raila not counting. These new notices were distributed to election judges when they came to the County Board office the weekend before the primary to pick up the keys necessary to access the contents of the ESCs. The County Board told these "Key Election Judges" to distribute these new notices but, according to Raila, "willfully and intentionally did not instruct the Key Election Judges to remove the green notices or not put up the posters" saying votes for Raila would not be counted.

In the days leading up to the primary, the Chicago Board did not run any new ads with any local media outlets correcting the prior ads or informing voters that votes for Raila would be counted. Furthermore, Raila alleges that for at least some time after the Illinois Appellate Court decision but before the primary, the Cook County Clerk's Facebook page still displayed the incorrect green notice.

On March 19, the day before the primary, the Cook County Clerk held a press conference and "told the media that it had been a mistake to allow the green notices to be placed in the election supply boxes." The Clerk said the mistake would be corrected by using the new black-and-white notices on primary day itself. The Clerk told Raila by phone that emails would be sent to election judges at all polling locations instructing them to only give out the black-and-white notices. However, Raila alleges that as of March 19, many polling places had not received the corrected notices, and that the promised emails "either did not get sent, were not received, or were ignored in many polling locations." Raila alleges that the "failure to address the issue and ensure that corrected notices were distributed was a reckless and intentional act to keep Ms. Raila from her right to run in a free and fair election."

The night before the primary, the Cook County Clerk informed Raila that a pre-programmed text message would be sent to all election judges the morning of the primary telling them to only hand out the corrected black-and-white notices. However, the next morning, the text message sent out stated the opposite: "This is a message from Election Central—Hand Out the Green 'NOTICE to All Democratic Voters' Thank you. – Chicago BOE." As a result, for several hours that morning, at least some voters were given incorrect notices stating that votes for Raila would not count, before subsequent messages were sent with correct instructions. The Chicago Board later held a press conference stating that the initial message was "an error."

Raila alleges that the collective actions and inactions of the County and City Boards in the time between the Illinois Appellate Court's decision and the primary itself were "deliberate and willful" and were motivated by a desire to "bolster the candidacy of another challenger to the incumbent." That challenger was Fritz Kaegi, who ultimately won the nomination and had been "openly and publicly supported" by then-Cook County Clerk David Orr.

[Raila] asserts a violation of [her] Amendment right to free association by restricting her access to a place on the ballot … [and] a violation of Raila's Fourteenth Amendment rights in that she was treated "differently from other similarly situated individuals, namely the other candidates for Assessor." …

The reticence of federal courts to intrude on state election matters is well established. This has led to a general hands-off approach in cases involving the "dirty tricks" inherent in politics. The same is true for claims premised on " 'malfunctions' of the electoral process."

This latter category includes cases involving technical or logistical problems, and even those where election laws are not strictly followed. For example, in Hennings v. Grafton, the plaintiffs alleged "inaccurate tabulation of votes and 'arbitrary' action by the defendant county clerk as chief election official, all stemming directly or indirectly from the malfunctioning of electronic voting devices that were being used for the first time" and allegedly did not meet state requirements. The court held that plaintiffs' claims did not "rise to the level of a constitutional violation" because they were "at most irregularities caused by mechanical or human error and lacking in invidious or fraudulent intent." Similarly, in Dieckhoff, the plaintiffs brought constitutional claims based on the county clerk's failure to strictly adhere to the statutory notice and timing requirements for a referendum. The court rejected these "maladministration" claims, citing evidence that the defendant had attempted in good faith to satisfy both statutes.

On the other hand, "willful conduct which undermines the organic processes by which candidates are elected" may give rise to a constitutional claim, notwithstanding the "political issues" involved. Classic examples are vote dilution through malapportioned voting districts or discrimination against a specific class of voters. Courts have also recognized a narrow class of "fraud on the voters" cases that implicate the Constitution….

[Raila's] claims are distinguishable from those involving typical political machinations. Raila has alleged that a sizeable portion of primary voters were falsely told, by election officials at their polling places, that Raila was not an official candidate. This is not, for example, a case of crafty manipulation of the ballot referendum limit to frustrate an opponent's campaign, which could have been repudiated by voters. No such "political" response was available for Raila. Thus, the remaining question is whether Raila has alleged mere "maladministration" of the 2018 primary, or the sort of willful conduct that can pass muster under § 1983….

[T]he Court finds that Raila has not plausibly alleged willful conduct intended to undermine her campaign in the 2018 primary.

Many of Raila's allegations are conclusory. Raila's contention that willfulness "can be seen" in Defendants' failure to take certain actions in advance of the primary is simply a declaration of how the Court should interpret those actions. Likewise for her assertion that a willful plot against her is the "only explanation" for the erroneous text message. Other allegations are speculative, such as the assertion that the promised emails regarding the notices "either did not get sent, were not received, or were ignored in many polling locations." These statements carry little weight in the Court's assessment.

Furthermore, Raila's own allegations frequently contradict her claims of a willful conspiracy to impede her campaign. For example, while Raila claims that election officials willfully and deliberately chose not to tell election judges to remove or dispose of the erroneous green notices, it's undisputed that those same officials did tell the election judges to distribute the new, correct notices. Similarly, Raila's allegation that the City Board intentionally sent the erroneous text message on the morning of the primary is undercut a few paragraphs later when she says that the Board held a press conference calling the text an "error."

The Court is sensitive to the rule that it must accept Raila's factual allegations as true and draw reasonable inferences in her favor. But the Court does not approach this case, nor indeed any other, with naiveté as though it only sprang into existence hours ago. "Determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."

Here the Court retrieves Hanlon's Razor from its sheath. The inference Raila seeks—that the various blunders in the lead-up to the primary were the product of a deliberate and nefarious conspiracy—simply isn't reasonable in light of the facts she alleges, which include multiple mea culpa press conferences and several affirmative efforts affirming Raila's candidacy. The truth is that here, "the election officials' actions sound more like incompetence than election fraud."

That administrative mistakes occurred is understandable given the circumstances. The County and City Boards had less than a week to respond to the Illinois Appellate Court's decision, which was itself filed, argued, and decided in the span of roughly two weeks. Furthermore, the task of implementing the on-the-ground fixes fell largely on the shoulders of volunteers, no doubt well-intentioned but with limited formal training and, in this case, some clear lapses in leadership. Cf. Hennings (noting that "errors and irregularities" are "inevitable" in elections staffed by volunteers, and that "no constitutional guarantee exists to remedy them").

The Court does not mean to minimize what occurred in the 2018 primary. The possibility that voters were given incorrect information at the time they cast their ballots is troubling and should not be brushed aside as a "de minimis inconvenience" to First Amendment rights. But while the Defendants in this case may bear some responsibility for those issues (to the extent those officials remain in their positions), accountability will not come in the form of this § 1983 action….