listed by this court in the ryssdal case going off of the sniffy cherry case and attempting to decide whether there was a case for liability or not it did not even apply the the standard of this court in headings where it said willful conduct which undermines your gannett processes but which candidates are elected that is not what occurred instead the court went to an error that standard of publicity versus not publicity as far as being determinative of the case as we view the cager authors in that situation the case was not support the district court in that we see a clear demarcation in the case law between what the factor the main factor that run a silk court described which was conduct that was intimately involved with the ballot as opposed to the other chicanery or other things that might go on in a political campaign you can that standpoint there's a very limiting factor upon these types of cases no one opening up the door to anybody as far as the courthouse door in that the actual misconduct had to be intimately related connected with the ballot so we see that there's a very clear demarcation there because in in the in the jones case relied upon heavily by the district court the ballot was fine officials had lied about the facts in an election campaign on a referendum that was properly on the ballot is legally on the ballot what the smith case teaches however is that when there is a fraudulent candidacy such as we have alleged and the courts found that a jury ction manage to make a simply asking the court to reinforce the rules that were set down in the router still case when sent down the criteria in the in the smith case that the fraud was intimately connected with the ballot and the purpose in effect of deceiving voters is the you said smith is the controlling statute or maybe indeed the panel and smith thought it was writing a statute but these days the supreme court does not understand the judicial role that way i'm interested in the question whether smith as you understand it or in any other way has ever been followed either by the th circuit or by any other court of appeals ever so as never been followed anywhere by anyone perhaps that suggests there is some problem with it i don't think there's a problem with it your honor in that it is strongly follows one thousand nine hundred and eighty three  actions taken towards them in election and now there's nothing new in the smith decision that some radical departure of law equal protection for candidates in an election is a longstanding principle of certainly  if you go back to what you said about root issel ok russo has the purpose and effect test as you stated how do you deal with the effect aspect of this on this fact pattern with this evidence well your honor it is simply the effect of the fact that the candidates if you were the sham candidate were on the ballot they should not have been on that ballot so what they did was they conspired to put those candidates on the ballot and the effect was to actually have those candidates on the violent i fought in within the meaning of root of soul i thought one when our court talked about purpose in effect we were talking about effect on the elect a lector it we weren't talking about is moving on your honor our other contention our other contention is that the without regard to the election outcome you're saying you don't need to ask any question whatsoever about the outcome of the election you don't need to ask any question at all about what mister gonzalez you know what he was campaigning upon all you need to do is focus on whether there was an impact on the ballot and then from there you can assume an effect upon the electorate is that your argument no your honor the fact i would go back to the kusa say case that we cited in our preacher honor where this court said that the election result that was a pager under which the allegation was that alice had been spoiled and the one of the rationales for denying liability was well as only two or three hours it would have affected the outcome of the campaign so it's all right well this court strongly stood up and said it doesn't matter our purpose case law such that the the but this isn't a pleading issue this is a this is a proof issue this is summary judgment right right your honor but it can be what we're pointing out though is that  the effect of the shans upon the election is one that the jury could consider that they affected the election in that in that with them but i'd also say your arm i want to make were very fundamentally this is not a case saying we lost the election therefore there's liability a liability here three a motion in distress funds expended so we're not at the point that we've been making throat case your honor is that there is no real relevance to the actual outcome of the election because the violation existed independent of the election y or whether he won or he lost it was still a constitutional deprivation there so our point is that if you begin to as a coup does that court said if we're going to allow misconduct to be remedied by election results we're simply asking for seconds i'll simply make my other main point which is that we we believe that the application of the of the only the very language of jason gonzales placing the matter before the voters was a total distortion and that the he had a right to scotto on behalf of the defendants i'll begin with a couple of quick points in response to your honor's questions and my colleague's responses just to address briefly the case that they cite from this court in two thousand and eight just to be clear that was a case involving voters as voters seeking to vindicate their right to have their votes counted and the court not surprisingly concluded that under those circumstances the ultimate outcome was not relevan for purposes of calculating damages or for the elements of the underlying claim here as we point out in our brief one only has to look at the damages side and my colleague just summarized some of them but they appear in the statements of undisputed voter a frustrated voter or as a successful candidate and so in response to judge counter your earlier question i think it is it is more than fair to say that mister gonzalez is pursuing his relief in this case as a candidate and not as a voter in response to judge easter brooks prior question we certainly do not take as given that smith was wrongly decided and like my colleague we are not a or was rightly decided excuse me and like my colleague we are not aware of any case a number of things clear in that case one of them is that even material misstatements that were widely disseminated including misstatements as to the motivation behind the in that case the referendum item being on the ballot that does not rise to an equal protection violation instead as judge scudder noted initially there has to be an actual effect on the votes they have to be deceived as to the effect of the votes and smith tells us very very narrowly what it means to be deceived as to the effect of your vote or are you conceding that successful industry would be actionable as well as a candidate runs for office and says i will never raise your taxes and two years later he does does that mean there's now a constitutional claim against that candidate absolutely not your honor and in fact rude as so makes that very point clear in sin saying that lies and in that case we're talking about lies by the the official proponents of the measure had lied not only about their own self interest financial interest in the bond issue but also lied about the critical underlying facts about the impact of the issue and its importance to the municipality so absolutely not your honor the only the only fiction that smith recognizes and again assuming even smith was correctly decided the only issue that is deemed a fiction and smith is if you are voting something for something that is not actually what you are voting for smith called it the courts including the lower court within the smith opinion describes it as voting for a fictitious person that is that is what was happening in the smith case it's either voting for a person who doesn't exist and so you are truly being deceived as to the impact the effect of your vote for as the smith you're voting for someone who in fact will not be the candidate will not there is a pre arranged agreement that you are in fact i'm voting for somebody else those are the narrow circumstances in smith that is how it has been construed by subsequent cases including bloc and and right a sill and not surprisingly under those circumstances it has been distinguished on precisely those grounds indeed at the threshold because there is no shampoo candidate here the court needn't even reach the other three elements of the smith plane all of which failed here out i'll pause briefly making one more point on the sham question and then discuss briefly i know these two others came up in the opening ten minutes namely no effect on the outcome of the fact that the public knew the truth with regard to sham just what is a sham candidate and i think judge scott or this goes to your initial question at the outset of the argument what is the legal rule being asked for here i don't think we know what the legal rule being asked for here is insofar as even in the reply brief plaintiffs are in my view understandably unwilling to define a sham candidate their own their own  client excuse me in the course of his deposition refers to his understanding of what is a sham candidate is a quote highly subjective criteria and it seems to be a mix of the initial motivations iran and some combination of the traditional trappings of a robust campaign but this is precisely the kind of thing that if anyone is going to regulate if there's going to be a response to what their own expert describes over the course of nearly ten pages as a widespread spread phenomenon of lackluster candidates being added to running running campaigns if there's to be an answer it would come from state legislatures and state election authorities but indeed we know from this record that election authorities have been unwilling to do so precisely because and this is i would i would direct the court to exhibit eighteen i'm referring to the consecutively numbered exhibits to the statements of undisputed fact your honor exhibit eighteen is a wall street journal article widely publicizing mister gonzalez's allegations in the course of the primary making the point that local election officials are unwilling to ramp up things like signature ironman supreme and fund raising issues those sorts of factors precisely because they don't want to be in the business of distinguishing between real and unreal candidates and that's more on the sham or less there are further questions i'll just conclude by saying that as this court pointed out in bronze as well which is not to be forgotten in candidate which is precisely what the plaintiffs in this case asks i'll move quickly to the remaining three elements all of which failed here in any one of which provides an independent basis to affirm the judgment below as your honour's pointed out in the earlier questioning the public knew the truth here indeed the public knew the truth as we pointed out in our brief even without the newspaper articles and the t v interviews and so forth what  is describing is a lack of things like yard signs door to door visits rallies committees donations putting aside the fact that actually the record is undisputed that mister barboza did go door to door with a flyer  others including family members to do so on his behalf putting that to one side what he's alleging is something that would be immediately apparent to anyone who chose to look it's easy to see whether or not someone is is has yard signs and is holding rallies and collecting money but on top of it here of course as the district court directly found citing only a portion of the articles and media coverage in the record this is the story that is is being alleged in the complaint was fully aired throughout with deep media coverage and it was precisely the allegation made here i'll quote just one of them exhibit fifteen which is a chicago sun times article referring to what is widely seen as inactive madigan plants to divide the opposition that is precisely what's alleged here should be to get to man again in activity and the motive behind it all of that was thoroughly aired as the district court correctly noted your honor i will also touch i would just briefly on your point judge scotter asked about the effect on the outcome there is no longer any dispute in this case and ms rodriguez had absolutely no impact on the ultimate outcome of this case and as i mentioned before with regard to the damages that are being sought if one were to look at those requests emotional damages costs of campaigning and so forth whatever it amounts to all of them all of the itemized issues with regard to damages are things that would not be sought a successful candidate and so the idea that the smith requirement that there be a demonstrated reasonable possibility of effect on the outcome the idea that that would not apply here simply doesn't hold water in light of the relief requested i'll very briefly touch on the th failed element here which again provides yet another independent ground for a firm and that is the absence of state action  the not surprisingly federal courts have had occasion in the past to review allegations that an incumbent official was acting in there as a state actor in the course of champaign activities in the courts have resoundingly rejected that theory campaign money is private funds being spent campaign activities are not even by an incumbent seeking reelection are not state action and i would just commend to the court who state and federal cases that we cite and nor by the way is prestige or i cloud is the term he used in his brief before this court the whole case from the th circuit addresses that allegation squarely where you had a county attorney endorsing publicly endorsing a judge for reelection and doing so even signing the endorsement in the ad in the newspaper as the county attorney and even under those circumstances the th circuit rejected the notion that that was state action merely because the individual at issue had clout or prestige by virtue of his state position finally i'll just note that there is no need for this court to reach the issue but hutchinson out of the th circuit  which has not been to my knowledge or certainly remains unchallenged by any other courts of appeals hutchinson stands for the proposition that money damages are not available under section one thousand eight fifty three claims and the two supplemental state law claims rise and fall fail certainly if the section one thousand eight hundred and three claim fails the the district court judge so found on page a nineteen and there has been no no dispute on appeal that that is in fact the case and so unless the court has further questions weston are briefs thank you counsel thank you your hon department all of the branches and agencies of government have been permeated by mike madigan in his respective positions that he holds to try to advance those that he wants for advance on his behalf in this particular case in weeks or days leading up to the election so yes the issue was brought up but that's his st amendment right as a candidate to bring it up that doesn't negate the fact that the fraud was committed on the ballot way before mister gonzales knew anything about that you ace will be taking