In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1874 

JASON GONZALES, 

Plaintiff-Appellant, 

v.

MICHAEL J. MADIGAN, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 7915 — Matthew F. Kennelly, Judge. 

____________________ 

ARGUED NOVEMBER 10, 2020 — DECIDED MARCH 8, 2021 

____________________ 

Before EASTERBROOK, KANNE, and SCUDDER, Circuit Judges. 

EASTERBROOK, Circuit Judge. Michael Madigan was elected to the Illinois House of Representatives at age 28 in November 1970 and re-elected to 25 additional two-year terms. 

He became Speaker of the House in 1983, a position he retained with the exception of two years when the Republican 

Party controlled the House. He became Commi]eeman of 

the 13th Ward Democratic Organization in 1969 and Chair-
2 No. 20-1874 

man of the state’s Democratic Party in 1998. In January 2021 

he withdrew from the race to be reelected as Speaker. The 

next month he resigned his seat in the House and his role as 

Chairman of the statewide party, though he retains his post 

in the 13th Ward. His 36 years as Speaker make him the 

longest-serving head of any state or federal legislative body 

in the history of the United States. 

Madigan comfortably won both primary and general 

elections for his entire political career. Most years he ran unopposed in the Democratic primary; some years he ran unopposed in the general election. When he faced opposition, 

the races were not close. Which makes it hard to understand 

the conduct he is accused of in this suit. 

Four candidates were on the ballot for the Democratic 

primary in spring 2016: Michael Madigan, Jason Gonzales, 

Grasiela Rodriguez, and Joe G. Barboza. Madigan won with 

65% of the votes cast; Gonzales received 27%, Rodriguez 6%, 

and Barboza 2%. Gonzales contends in this suit under 42 

U.S.C. §1983 that Rodriguez and Barboza were stooges put 

on the ballot by Madigan’s allies to divide the Hispanic vote 

and ensure Madigan’s victory. The effort was hardly necessary, since if every non-Madigan vote had gone to Gonzales 

he still would have lost in a landslide. Nonetheless, Gonzales 

contends, the appearance of two candidates who served only 

as distractors violated the Equal Protection Clause in the 

Fourteenth Amendment and entitles him to damages (perhaps represented by the expenses of his failed run). Gonzales relies on Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), 

which held that a stalking-horse candidacy, in which the 

nominal contestant secretly planned to withdraw after winning the primary and permit a party commi]ee to name the 
No. 20-1874 3 

candidate for the general election, could in principle violate 

the Equal Protection Clause. 

In the district court and this court the parties have debated quite a few issues, such as whether the margin of Madigan’s victory in 2016 defeats the claim and whether Gonzales 

has demonstrated that state action is behind the appearance 

of Rodriguez and Barboza on the ballot. (Section 1983 is limited to actions under color of state law.) The district judge 

ultimately held a single issue dispositive: whether, if Madigan was behind Rodriguez and Barboza (he denies having 

any role), that sponsorship was a secret. The district judge 

thought that the key to the holding of Smith was the voters’ 

ignorance of the stalking horse’s plan to facilitate the appointment of someone who was not on the ballot. Gonzales 

smelled a rat from the start and made that known to the electorate, which swept Madigan back into office anyway. An 

editorial in the Chicago Sun-Times agreed with Gonzales 

about the provenance of the Rodriguez and Barboza candidacies, so the voters did not have to take his word for it. Our 

Endorsements for the Illinois House, CHICAGO SUN-TIMES (Feb. 

19, 2016). Because the voters were not deceived, the judge 

held, the conditions leading to liability in Smith have not 

been satisfied. The court granted summary judgment against 

Gonzales. 403 F. Supp. 3d 670 (N.D. Ill. 2019). 

Gonzales’s response has been to file an appellate brief 

that treats the district judge as an extra defendant. According 

to Gonzales, the judge personally violated the First Amendment by penalizing Gonzales’s campaign speech. That u]erly misunderstands the burdens of production and persuasion in litigation. To prevail, any litigant must establish the 

elements of a valid claim. One aspect of that claim, under the 
4 No. 20-1874 

analysis of Smith, is that the voters have been hoodwinked. 

Gonzales’s own speeches and ads during his campaign show 

that the voters were not hoodwinked. End of case. Recognizing this does not penalize anyone’s speech. It shows, rather, 

that Gonzalez did not satisfy the governing legal standard. 

Imagine a contract case. Green promises to deliver a ton 

of steel to Perkins, who files suit claiming that Green did not 

perform. Green responds by producing a wri]en acknowledgment by Perkins that the steel was received in good condition. Perkins loses—not because his speech (the acknowledgment) has been penalized, but because evidence shows 

that his claim of nondelivery is false. Likewise if Perkins 

signs a release, which Green tenders as an affirmative defense. See Fed. R. Civ. P. 8(c)(1). Speech, including statements in depositions and answers to interrogatories, often 

affects the outcome of litigation, but a judge who takes account of speech that proves or refutes the plaintiff’s claim 

does not violate the First Amendment. 

Gonzales also accuses the district judge of violating the 

Due Process Clause and the Equal Protection Clause. Those 

assertions—advanced without elaboration in one-half page 

of the appellate brief—do not require independent analysis. 

That’s all we need to say, but we cannot close without 

remarking that we have applied Smith as wri]en without 

endorsing its reasoning or disposition. The opinion in Smith

does not explain why political deceit violates the Equal Protection Clause. We mean no disrespect to politicians in recognizing that many false statements are made during political campaigns and that many a stratagem that one side 

deems clever will be seen by the opposition as a dirty trick. 

Opposing political figures may brand true statements as 
No. 20-1874 5 

false and honest campaigning as a ro]en subterfuge. Voters 

rather than judges must decide when one side has gone 

overboard. We explained why in Jones v. MarkiewiczQualkinbush, 892 F.3d 935, 939 (7th Cir. 2018): 

Politics is a rough-and-tumble game, where hurt feelings and 

thwarted ambitions are a necessary part of robust debate. See

Manley v. Law, 889 F.3d 885 (7th Cir. 2018). It is impossible to imagine the judiciary a]empting 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. The right 

response is political ... . ... Any 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.

Gonzales told the voters that (in his view) Madigan had 

played a dirty trick. The electorate nonetheless sided with 

Madigan. The Constitution does not authorize the judiciary 

to upset that outcome or to penalize a politician for employing a shady strategy that voters tolerate. 

Smith was a bolt from the blue. It does not have any predecessors that we could find. Nor has it had any successors.

Rudisill v. Flynn, 619 F.2d 692 (7th Cir. 1980), pre]y much 

confines it to its facts. None of our decisions since Rudisill

has relied on Smith to hold that any candidate’s mischief 

during a contested election violates the Equal Protection 

Clause. As far as we can tell, none of the other courts of appeals has ever reached a decision similar to Smith; certainly 

none has ever relied on Smith to vindicate one politician’s 

view that an opponent overstepped the bounds of propriety. 

See, e.g., Pignanelli v. Pueblo School District No. 60, 540 F.3d 

1213, 1219 (10th Cir. 2008) (distinguishing Smith because 
6 No. 20-1874 

“voters had a real choice between real candidates” in a 

school board election). We need not decide today whether

Smith should be overruled, but we are confident that it 

should not be extended. 

AFFIRMED