Was the Bar poll fixed?

By Mike Kroll

The March Primary is slightly more than one month old and was unique in Knox County history as the only election in memory where a judicial race was the major voter attraction. Nine area attorneys vied for slots on the Republican and Democratic November tickets. Galesburg attorney John Rehn received 50 percent of the total vote in a field of five Republican judicial candidates while Democratic candidate Scott Shiplett's margin of victory was much smaller (161 votes) in a four-person race. One characteristic shared by the two victors was that they were the only two candidates rated as recommended in the Illinois State Bar Association poll of attorneys. Earlier this week a bipartisan group of the defeated judicial candidates sent a letter to the State Bar Association questioning whether “dirty tricks were played in the ISBA poll in the Ninth Circuit.”

The letter was signed by Steve Watts (R), Bill Butts (D), David McCrery (D) and Sherry Lawson-Sanchez (R), all of whom received far less favorable ratings in the ISBA poll. “On its face it appears that a political party, organized group or individual may have attempted to improperly influence the results of the Ninth Circuit ISBA poll. ...If [the ISBA poll was manipulated] to favor one candidate and/or adversely affect the ratings of other candidates the poll was fatally flawed and the public misled by the ISBA's 'recommendations'. ...There are serious ethical issues at stake which could result in sanction being taken against attorneys if it is shown they participated in manipulating the poll.”

The letter quotes two Supreme Court Rules from the Illinois Rules of Professional conduct: “A lawyer shall not: engage in conduct involving dishonesty, fraud, deceit or misrepresentation” (Rule 8.4) and “A lawyer shall not make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualification or integrity of a ...candidate for election or appointment to judicial or legal office.” The letter goes on to say, “An attorney who participated in a scheme to enhance a candidate's credential by stuffing the ballot box for a candidate and/or against his opponents could face ethical sanctions up to and including disbarment.”

Many have criticized ISBA polls such as this in the past as gender-biased and subject to cronyism but this appears to be the first incident where allegations have been raised that a judicial candidate or others on his behalf may have conspired to manipulate the ISBA poll not only to improve his own rating but simultaneously to damage the ratings of his opponents. The implication is that Rehn or his supporters not only solicited attorneys to vote glowingly on Rehn's judicial qualifications but simultaneously asked that they disparage the remaining judicial candidates. The ISBA poll makes no political party distinction and hence such a scheme would have negatively affected Republican and Democratic candidates alike.

Allegations such as these are incredibly hard to prove. The ISBA poll is privately conducted and most of the mechanics are never made public. However, the circumstantial evidence cited in the letter appears damning. Reportedly there were 143 ISBA members in the Ninth Judicial Circuit (not all attorneys are members) but the participation in the poll is not restricted solely to member attorneys from within the circuit. Although the poll was “mailed only to ISBA members within the circuit” other attorneys are permitted to request ballots and participate regardless of where they practice. Prior to the March Primary, 45 additional attorneys requested ballots for the Ninth Judicial Circuit and 127 ballots were ultimately cast in the poll. “Assuming all 45 individuals who had requested ballots voted – 35 percent of the 127 ballots actually cast were by individuals who had requested ballots. This percentage is by far the largest in the entire state of Illinois.”

After studying ISBA statewide documentation conduct of this year's poll, the letter writers note that “in twelve of the twenty circuits which held [primary elections] the number of requested ballots were less than one percent” and there were “six circuits with zero requests for ballots.” Four other circuit polls saw less than five percent requests for ballots. Of the three circuits with the highest percentage of requested ballots excluding the Ninth Circuit requested ballots accounted for 19.3, 23.7 and 28.4 percent of the ballots cast in each respective circuit's poll.

“Given the extraordinarily high number of ballot requests, the ISBA had a duty to investigate the poll results to determine their validity prior to their public release. Unfortunately the ISBA did not do so. Moreover, the candidates themselves were not informed by the ISBA of the huge number of ballot requests. They were only provided the number of ballots sent and cast. Therefore the candidates were denied the opportunity to make an informed decision whether to challenge the poll results prior to the election. The ISBA's failure to investigate potential voting irregularities and to release complete data to candidates prior to the primary breached its duty to candidates and voters to conduct a fair and unbiased poll.”

The letter goes to to ask the ISBA to belatedly investigate the Ninth Judicial Circuit's poll results and procedures. They ask that a “joint committee” be formed “to investigate whether there was 'a substantial and improper influence on the poll' for or against certain candidates” and that copies of ballots and other poll materials be made available to all Ninth Judicial Circuit candidates on or before May 2.

While the poll results were suspiciously skewed and the letter's allegations are indeed serious, it is unclear just what will be accomplished by the investigation proposed. It would appear very difficult to convincingly demonstrate the existence of purposeful poll tampering in the absence of damning correspondence or confirming statements by at least a few of the attorneys who were allegedly asked to participate in the plot. It seems doubtful that the ISBA would be in possession of correspondence documenting a conspiracy and such statements by participants would by necessity be self-incriminating and therefore seem highly unlikely. Nonetheless, an attorney who acted improperly or presents an appearance of impropriety could face sanctions or be judged negatively in the court of public opinion before the general election this November.

04/27/06