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Race: one problem with electing judges

In a contest with a candidate who was repeatedly described as unqualified, the state's first Latino-surnamed justice, praised by Republicans and Democrats, lost in most counties but was saved by big support in a number of areas. What does that say about our system of picking judges?
Washington state's current Supreme Court justices

Washington state's current Supreme Court justices State of Washington

I did a double take when first checking The Seattle Times website for breaking election results the evening of Tuesday, August 7. By 8:30 p.m., in the race for Washington Supreme Court Position 8, the votes of 87,000 Washington citizens had been counted for Bruce Danielson, who had not campaigned for the position. Even worse, at that moment he was leading incumbent Justice Steven Gonzalez by nearly 16,000 votes. 

I then realized that the early returns were mostly from Central and Eastern Washington. I felt mixed emotions. On the one hand, I was relieved that populous King County — where then-Judge Gonzalez spent 10 years on the Superior Court bench — had not yet submitted its results. 

But I was completely dismayed that more than 87,000 voters — which when all was said and done became 438,867 voters — chose Danielson, an unqualified candidate for our state’s highest court. Tragically, many of those 438,867 citizens chose Danielson over Gonzalez because one of the candidates has a Latino surname. Let me explain.

Justice Gonzalez beat Danielson in Kitsap County — Danielson’s home county — by a landslide. He should have won in a landslide across the state. 

Justice Gonzalez relentlessly campaigned across the state. He was rated “exceptionally well qualified” by eight organizations and was endorsed by the editorial boards of major newspapers throughout the state. Danielson, on the other hand, refused to be rated and did not campaign. He was even rejected by the community that knows him best; in fact, in a Kitsap County bar poll, the lawyers chose Justice Gonzalez by a margin of 90 to 2.

Justice Gonzalez also enjoyed broad bipartisan support, receiving endorsements from both gubernatorial candidates — Rob McKenna and Jay Inslee — and both attorney general candidates — Bob Ferguson and Reagan Dunn; not to mention 300 judges statewide. It is no surprise that Justice Gonzalez raised a record amount of money for a judicial primary. 

As for Danielson, his candidacy simply had no support, for lack of effort.  Danielson did not participate in a single candidate forum or endorsement interview, nor did he raise a dime for his campaign.

But campaigns aside, the candidates were incomparable on the merits. Justice Gonzalez served for 10 years as a Superior Court judge and, at times, was named “Judge of the Year” by numerous organizations. Gonzalez speaks four languages, received his law degree from U.C. Berkeley, and had a decorated career as an attorney in private practice and as a federal prosecutor before he became a judge. 

By contrast, Danielson’s career seems unremarkable by any measure. He has lost multiple races for Kitsap County Superior Court and Kitsap County prosecutor. In fact, multiple organizations rated Danielson unqualified to serve on the Supreme Court.  On the merits: Judge of the Year vs. Unqualified Candidate.

And yet, despite Justice Gonzalez’s tireless campaigning and distinguished career, Danielson won the vote in 29 counties, while Justice Gonzalez won only 10. Defying all logic, Danielson even out-performed McKenna in some counties. So, what is going on here?

Before becoming a state, Washington was a designated territory for 36 years. During these years, Washington’s judges were appointed by the president and confirmed by the U.S. Senate. The territory’s residents complained that these appointed judges — sent from the far-flung corners of the country — had no experience with Washington’s territorial laws and were completely unfamiliar with the local customs and rules of practice. 

The judiciary, it was thought, should derive its power directly from the voters instead of other branches of the government that would undoubtedly fill the bench with loyal party members, rather than qualified jurists. Thus, when Washington became a state in 1889, the delegates to Washington’s constitutional convention resolved that the state would elect its judges. In fact, that decision was part of a nationwide trend: Every state that has entered the union, beginning with Iowa in 1846 through Alaska in 1959, has opted for judicial elections of some form. 

Today, Washington is one of 30 states that elect all or some of their judges, and one of only 12 to do so in a nonpartisan manner. The Washington Supreme Court has nine justices, who serve staggered six-year terms. Therefore, three are up for election every two years. For a mid-term vacancy, the governor appoints a successor who must then be elected in the next election in order to retain the seat.

Through the 1980s, Washington’s Supreme Court elections were relatively boring affairs. Most judges reached office by appointment and never faced a contested election. 

Then, in 1990, a largely unknown man by the name of Charles Johnson challenged Supreme Court Chief Justice Keith Callow, a well-respected and highly qualified jurist. Johnson defeated Callow without spending any money or doing much campaigning. As it turns out, Justice Johnson is a good justice and has kept the seat to this day. (In the meantime, Justice Jim Johnson most certainly gained advantage from his shared last name, which connoted incumbency in his election in 2004.) 

Since Justice Charles Johnson’s victory, hotly contested, PAC-funded elections have become commonplace. Still, so-called “stealth” candidates — often under-qualified with lackluster credentials — file at the last minute and do little or no campaigning, relying instead on other factors, such as a “good” last name, ballot placement or just sheer luck of the draw.

If there was ever a “stealth” candidate, Danielson fits the bill: He filed an hour before the deadline and simply did not campaign. It appears that he was hoping to slip by — and troublingly, in 29 counties, he did just that. Fortunately, Justice Gonzalez became the first person with a Latino surname in Washington history to win a statewide race, capturing 60 percent of the vote once all of the votes had been counted. 

But it makes you wonder: Danielson still received 40 percent of the state’s votes.  Why?

With nothing on the election ballot but a name, many believe that Justice Gonzalez’s ethnicity played a role.  According to Matt Barreto, a political science professor at the University of Washington, “A consistent finding in the research is that minority candidates, all other things being equal, are evaluated less favorably by the voters.” 

Indeed, a recent study in the Akron Law Review by Ric Simmons found that this phenomenon is not unique to Washington. Nationally, Simmons states, “Assumptions voters make about the candidate based on the name of the judge (e.g. the candidate is a woman or Jewish or of Irish descent) ... have a strong influence on voters’ decisions.” 

According to exit polls and similar studies, citizens rarely have any knowledge about judicial candidates, including their names, and have precariously little information upon which to base their decisions. In other words, all things are often equal — most voters are equally ignorant. This was compounded by the fact that only four Washington counties paid to publish and mail voters’ pamphlets for the primary election this year. Interestingly, Justice Gonzalez ran best in all four of these urban, Western Washington counties, including King.

In the abstract, it makes sense that citizens vote for judges in a vacuum. What should the electorate use to gauge the candidates? Indeed, the ideal judicial candidate would be one with no affiliations, no partisan background, and no opinions on controversial issues; impartial, free of prejudice, and able to decide cases on the merits without regard to his or her own interests. 

Milquetoast statements such as, “My background is diverse and personal life experiences will enable me to approach the Court with a unique perspective, understanding, and empathy,” offered by a 2008 Ohio Supreme Court candidate, hardly say anything about a candidate’s familiarity with the law. Nor does the other campaign fodder offered, such as how many children or grandchildren they have, how long they have been married, or how many animals they own.

Unfortunately, the gaps created by such bland statements are increasingly filled by sensationalist PAC attack ads that distort the credentials of the candidates and focus instead on high-profile political issues that make up a very small percentage of cases to be decided. 

Indeed, the trend of spending exorbitant amounts of money on attack ads in judicial races — essentially the only way to stand out as a judicial candidate — appears to be gaining momentum. In 2006, the total funds raised by Washington Supreme Court candidates exceeded $5 million, a fourfold increase over the prior year. 

But what is more important, the three top political action committees in our state — Citizens to Uphold the Constitution, Building Industry Association of Washington, and Americans Tired of Lawsuit Abuse — spent more than $2.6 million on the Supreme Court campaigns alone (exclusively supporting right-leaning, Caucasian, male candidates), representing 47 percent of all independent expenditures made in Washington that year. The plaintiffs’ bar in Washington is not without financially clean hands either.

These groups, not the candidates’ campaign committees, paid for all of the television advertising related to the Washington Supreme Court elections. Indeed, as Justice Charles Wiggins — before being elected to the bench — wrote for the Bar Bulletin in 2007: “Private interests can threaten judicial independence by influencing judicial elections. The primary tool of private interests is the power of the purse."

On the other hand, as returning Supreme Court candidate Richard Sanders believes, “[N]o private person or group can possibly threaten judicial independence because the independence about which we speak is independence from the executive and legislative branches of government—not independence from the private sector."

Sanders — who also may have benefited from a “simple, mainstream-sounding name” in his initial election — is certainly correct about the need for judicial independence vis-à-vis other branches of government. But he is flat wrong that a person or group cannot threaten judicial independence, especially because “persons” now includes corporations, according to the U.S. Supreme Court in Citizens United v. Federal Election Commission.

In any event, judicial campaign finance is an acute appearance-of-fairness issue. Justice Sandra Day O’Connor wisely wrote upon her retirement: “When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.”

That brings us back to the issue of race. Because African Americans, Latinos and Native Americans are disproportionately poor, they contribute significantly less money to political campaigns than European Americans. Knowing this reality, candidates, including judicial candidates, generally care less about ethnic minorities’ electoral interests. In turn, racial minorities may feel further marginalized such that they disregard judicial elections altogether and, if or when in court, they disproportionately fear that a judge is more accountable to majority or corporate ideology than to stare decisis or the rule of law.

Further muddying the waters, most voters are not experienced in the law and have little knowledge of the criteria that make for a “good” judge. The responsible voter instead determines that casting no vote on the subject is better than, say, evaluating a judicial candidate based on how many grandchildren he has. This, too, is reflected in the numbers. Generally, about one in four voters who cast a ballot fails to vote in Supreme Court elections.

Even more telling in Justice Gonzalez’s election numbers is his showing in the four counties that published printed voter guides listing his contest. In the other counties, the voters were very likely, barring independent research, casting their ballots based purely on the Supreme Court candidates’ respective European and Latino last names. 

The good sport that he is, Justice Gonzalez offered the following statement for this piece: “Improving judicial elections is crucial for our democracy. The lack of a voters’ pamphlet for the primary in most of the state was very unfortunate. With better information, voters make better choices. I look forward to serving the entire State of Washington and working to ensure that we have an informed electorate.”

Add, finally, into this debate the utter lack of elected representation for minorities in most areas of the state. The combined Latino population for 10 counties in Central and Eastern Washington, for example, is a bit higher than 33 percent. Yet, Latinos hold only 4 percent of those regions’ elective offices and not a single Latino lawyer has ever been elected to the bench in Eastern Washington. The same goes for Native Americans, who have yet to see an Indian judge elected to the state bench anywhere in Washington.

All of this begs the question: Is it time for Washington to re-evaluate whether our justices should be selected by popular vote?  I think so.

Originally published in the October 2012 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association. Copyright 2012.

Gabriel S. Galanda is a lawyer with Galanda Broadman, PLLC, in Seattle, and a member of the Round Valley Indian Tribes. He serves as a Quinault Nation Court of Appeals judge, and also mediates and arbitrates Indian Country-related disputes.


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Comments:

Posted Mon, Oct 8, 5:59 a.m. Inappropriate

Maybe Gonzales suffered from being appointed by Gregoire, a Hand Picked incumbant from an unpopular lame duck Governor? I saw Justice Gonzales speak at Eastern Washington University Commencement, he pandered for votes, spoke of how he didn't like electing judges (He prefers life time appointments for the Supreme Court) while switching between addressing the crowd in english and spanish.

The WSSC is also one of the least diverse courts in the State. Sanders, the last diverse opinion on the court, was run off by partisan staff and Justices in the last election cycle. Gonzales doesn't represent diversity from the current court unless your only consideration is race....as the author apparently is.

Cameron

Posted Mon, Oct 8, 6:13 a.m. Inappropriate

The vast majority of voters make no pro-active effort to educate themselves about candidates or issues on the ballot. They rely on the media, including campaign ads, to inform them. Judicial races and other matters crowded at the bottom of the ballot get little, if any, air time or reporting. In the counties that had no voter's pamphlet the vast majority of the voters had no information about either Mr. Danielson or Mr. Gonzales other than their names. They did not know their qualifications, they did not know about their endorsements, they did not even know if either of them was the incumbent.

Many voters, acknowledging their ignorance, chose simply not to cast a vote in this race.

Cameron's conjecture that any significant number of voters had any knowledge about either of these candidates - other than their names - is not only baseless, it is aggressively and willfully ignorant.

This was a clear example of tribalism in which the bulk of voters in Eastern Washington counties - without any other knowledge of the candidates - based their vote on the candidates' surnames.

The state needs to make a greater effort to provide voters with information about the choices on the ballot. We cannot afford an ill-informed electorate.

coolpapa

Posted Mon, Oct 8, 9:13 a.m. Inappropriate

Justice Susan Owens was first elected to the Supreme Court in 2000, so has served for 12 years and run a couple of times. She received 63% of the vote in her contested race. Justice Stephen Gonzalez was appointed to the court in January of 2012, is unknown to voters outside of King County, and has never run statewide. He still received over 60% of the vote in his contested race.

Over 60% for both justices with three percentage points dividing a well known incumbent and a justice unknown to the folks in over thirty counties. It's hard to understand why that result supports disenfranchising voters from selecting members of court.

Posted Mon, Oct 8, 10:13 a.m. Inappropriate

Galinda is correct that there is racism in judicial elections. I suspect many voters might not recognize that they are engaging in this activity, but that does not change the result of their behavior. Since it is not overt it is hard to pinpoint with certainty in any given race. In the case of Justice Gonzales there may be an east west divide. However, racism may be lurking among the voters in the more urban areas and just did not rear it's head in this race.

With or without a voter guide judicial races are hard to figure out for most voters. I have heard it suggested that when in doubt voters will gravitate toward the name they recognize or seems more familiar. The fact that Danielson did not campaign much supports this proposition. A number of years ago Justice Richard Guy (retired) had a close race with an opponent with a very mainstream sounding name. I do not recall the name. The opponent ran a minimal campaign. In that election there was no race issue involved.

bartlet

Posted Mon, Oct 8, 11:21 a.m. Inappropriate

Danielson and Gonzales are both Caucasian, racially. So race has nothing to do with this. The author might claim that cultural bias has had an influence, but race obviously has not.

dbreneman

Posted Mon, Oct 8, 2:53 p.m. Inappropriate

Um, leaving aside the inconvenient fact that the name Gonzalez sounds a lot, well, DARKER than Danielson does in the minds of a lot of people, would you be happier if we just called the voters in this race bigots instead of racists?

OK. They're bigots.

Posted Mon, Oct 8, 4:21 p.m. Inappropriate

What is "darker"? Produce the bigots that voted for Danielson.

jhande

Posted Mon, Oct 8, 4:22 p.m. Inappropriate

Howabout we ascertain factually whether they voted for Danielson for some reason other than "racism" before calling them either one? I know that's not nearly as much fun as hurling scurrilous accusations around, but it does seem a little more like journalism.

dbreneman

Posted Mon, Oct 8, 11:33 a.m. Inappropriate

I spoke from a first hand experience with Gonzales and any voter who googled/binged any details about Gonzales or his appointment to the Supreme Court by Gregoire would have and could have seen the same thing. It is neither aggressively or willfully ignorant to relate what is true and verifiable, unlike the speculative rantings of Coolpapa.

Cameron

Posted Mon, Oct 8, 12:32 p.m. Inappropriate

Great research into a troubling problem around elections in our state. It's not just a problem of elections for judges, however, it's how we elect in local races. This was a statewide race and the evidence is pretty clear cut that racially-polarized voting is taking place - same happens in local races (city council, school board, etc.).

That's why you have nearly 50% Latinos living in the City of Yakima, but no Latino ever elected there. One step in the right direction would be district elections, so that significant populations within a city (or county) could actually have a say in who represents them. The state Voting Rights Act would help convince jurisdictions to consider this shift.

Posted Mon, Oct 8, 4:40 p.m. Inappropriate

The contention, that since everyone just thinks Gonzalez is the greatest, that individuals that voted for Danielson are bigots/racists is about the most undemocratic thing I have heard in a while. Why bother to have elections? The contention is that the election Gonzalez was in was a mere formality, that the only acceptable result of the election was a Gonzalez win. That contention s nonsense, insulting to Washington State citizens, and bigoted on it's own.

Gonzalez is associated with the Democratic Party. Citizens in Eastern Washington do not like the Democratic Party. Gonzalez supports abortion rights, many citizens in Eastern Washington do not support abortion rights. Anyone running for judge, associated with democrats, will not get many votes in Eastern Washington.

The accusations of racism/bigotry are unfounded, and based on nothing. I could take any voting results and do a study that shows that my candidate lost because of the moral failures of the voters, and my study would be a bunch of BS. Just as the study about the Gonzalez election is BS. The racists/bigots are the individuals, who think Gonzalez should have won based upon his ethnicity.

I tire of United States citizens, who call themselves hispanic/latino, claiming that they may only be represented by a member of their ethnicity. What if everyone claimed that they could only be represented by their ethnicity? There are more ethnicities than there are elected positions. How do we fix that? Or are we only interested in some ethnicities having special privilege? The claim that one may only be represented by a member of their own etnicity is bigoted/racist.

So, if hispanic/latinos may only be represented by a member of their own ethnicity, then wouldn't it be proper for citizens of non-hispanic ehtnicity to only vote for an individual of their own ethnicity? Why are hispanic/latinos special?

jhande

Posted Mon, Oct 8, 6:08 p.m. Inappropriate

"The contention is that the election Gonzalez was in was a mere formality, that the only acceptable result of the election was a Gonzalez win." The contention is that no one else filed against Gonzalez, a highly qualified candidate, so Danielson, an unqualified candidate, jumped at the chance at the last minute. With only two candidates, the race automatically goes to the general (not the primary). And you ignore the fact that almost nothing about Danielson's (dis)qualifications was known to most voters.

"Gonzalez is associated with the Democratic Party." How so? Because Gregoire appointed him? Because he was a judge in King County? Regardless, party affiliation is not part of judicial races in this state. Are you aware of some advertising against Gonzalez in Eastern Washington pointing out his "Democratness"?

"The accusations of racism/bigotry are unfounded, and based on nothing." Not true; the accusations are based on careful analysis of the votes precinct by precinct. There is clear (statistically significant) evidence of anti-hispanic bias by voters in Eastern Washington.

"I tire of United States citizens, who call themselves hispanic/latino, claiming that they may only be represented by a member of their ethnicity." Where is this claim made? If a self-identified group in an electoral district constitutes almost half of the population, but none of the elected representatives (e.g., City Council in Yakima), why shouldn't they want to be represented on the council? "There are more ethnicities than there are elected positions" is a straw argument.

louploup

Posted Tue, Oct 9, 3:01 a.m. Inappropriate

How do you know what was known to voters? Advertisements have nothing to do with anything. Gonzalez being appointed by Gregoire, and being from King County, would lose Gonzalez votes.

Did the county Republican parties put out the word as to Gonzalez's tie to Gregoire. Nobody did any study to find that out. That would be a topic that would be brought up at coffee shops, and spread by word of mouth. Nobody did a study about that.

Did any of the local radio hosts say that Gonzalez was tied to Gregoire? Nobody did a study on that. In Eastern Washington, radio is listened to more than in Western Washington.

Most individuals in Eastern Washington pay no attention to political advertising, as most individuals in Eastern Washington are usually doing other things than paying attention to advertising. There is not the media saturation in Eastern Washington, and people like it that way.

A "careful study" of of voters, precinct by precinct, shows nothing about the reason for individuals votes. This careful study shows no voter suppression, no suppression of candidates of any race, no change in election structure to minimalize the vote of any citizen, and no on the ground interviews with Eastern Washington voters. The careful study gathered no on the ground information. None. The careful study is an advocacy paper. The careful study started with a preconceived notion, and claimed motivation that the study did not study, based on a guy sitting in a room looking at printouts of election results. A PR advocacy paper and nothing else.

The careful study did not number the number of hispanic candidates that have run for election in Eastern Washington. The careful study did not number the number of hispanic candidates associated with Democrats that lost in normally Republican districts. The careful study was no study at all. The careful study did find that a higher percentage of hispanic voters voted for Gonzalez, than non-hispanics that voted for Danielson. So, does this mean hispanics are even bigger racists than non-hispanics? Or does it mean nothing? I think it means nothing.

Where is the data that hispanics are almost half of the voting population of Yakima? I haven't seen it. How many hispanic candidates have run for Yakima City Council, two? One who was originally appointed. That is some huge proof of racism there, two hispanic candidates lost. That shows nothing other than two candidates lost. Candidates lose every election. Until now even hispanic candidates could lose elections; but, now I guess, we are told that hispanic candidates are too special to lose elections.

More on Yakima; Yakima has not changed it's election structure due to an influx of newcomers. Yakima has the same at-large council that it had before the advent of massive immigration. There was no change from a district council to an at-large council in order to minimalize any citizens vote. Yakima has the same form of coucil election it has always had. So, the at-large council in Yakima, put in place before the term "hispanic" had even been accepted as a term (by Richard M Nixon in 1969--part of the Republican "Southern Strategy")cannot be considered racist. There is no evidence of any voter suppression in Yakima, and there is no evidence of any suppression of candidates in Yakima.

The individuals that moved to Yakima made the choice to move to Yakima. They moved to a city with at-large council seats. Their choice. Yakima has no reason to change it's election system because some people move to Yakima, and start whining.

I am not represented by someone of my race, so is the system racist against me? No, United States citizens can be represented by United States citizens of any race/ethnicity. Hispanics are not special.

There are more ethnicities than elected positions, that is not straw man. That means hispanic is just one of many ethnicities. That means that hispanics are not special, and deserving of catered to hispanic's winning elections. Hispanics are not special, or better than anyone else.

jhande

Posted Tue, Oct 9, 10:29 a.m. Inappropriate

What race is the President?

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