This November, voters here in Washington and in other states will be deciding more than just who they send to the 116th Congress and the next gathering of their state’s Legislature. They’ll also be determining who sits on the bench in a multitude of different courts, from State Supreme Court to District and Municipal Court.
Unlike at the federal level, judges presiding over state and local courts don’t get on the bench exclusively by appointment and confirmation. Rather, they are elected by voters on the same ballots that executive and legislative candidates appear on.
While longtime voters are well aware that state and local judicial positions are subject to election, many new voters don’t know anything about voting for judges. And unfortunately, judicial contests often receive very little media coverage. That makes casting a vote for these positions more difficult than it should be.
This year in Washington, there are three Supreme Court positions subject to election. Although there were originally two candidates for each position — an incumbent and a challenger — two of the challengers were removed from the ballot due to having been disbarred, so as a consequence, there is only one position that is actually being contested. That race, for Position #8, pits highly respected Justice Steve Gonzalez against admonished attorney Nathan Choi.
Choi unsuccessfully sought election last year to the Court of Appeals (Division 1, District 1 — Judge Position 2). He was defeated. Choi received 23.73% of the vote, while incumbent Michael Spearman received 76.27% of the vote.
This year, Choi has done hardly any campaigning or fundraising, which has led many political observers to perceive that Choi simply isn’t a threat to Gonzalez.
The mass media has likewise paid the race scant attention. Only a handful of articles about the Supreme Court race have been published since Filing Week.
Jim Camden wrote a good story for the Spokesman-Review back in September; his colleague Jonathan Glover wrote a follow-up story a few days later when Choi and Gonzalez debated in front of the Spokane Rotary.
Pat Muir filed a report for the Yakima Herald-Republic (which was followed by an endorsement from the paper) and three other dailies have published endorsements of the incumbent justices: The News Tribune, The Seattle Times, and The Columbian. The Stranger also gave Gonzalez a ringing endorsement.
That’s basically the extent of the media coverage Gonzalez has received. A search of broadcast television and radio archives by NPI going back sixty days yielded zero — yes, zero — results for either Gonzalez’s name or Choi’s name. (By contrast, there were 2,007 results for Maria Cantwell and 760 results for Susan Hutchison.)
From what we can tell, not a single station in either the Seattle, Portland, Spokane, or Yakima/Tri-Cities markets has aired a story about the contest for Position #8, which is a statewide contest for a six-year term. It would appear that the program directors working at our Northwest stations have concluded there’s no race to cover.
But our research indicates that Gonzalez isn’t assured of cruising to reelection in a cakewalk, even though he is the only credible candidate running. When we polled on the race back in May, following Filing Week, we found Choi six points ahead of Gonzalez, with a whopping three-fourths of respondents not sure.
Here’s the question we asked, and the responses:
QUESTION: The candidates for the Washington State Supreme Court Position #8 this year are Nathan Choi and Steve Gonzalez. If the election was being held today, who would you vote for?
- Nathan Choi: 16%
- Steve Gonzalez: 10%
- Not sure: 74%
Our survey of six hundred and seventy-five likely 2018 Washington State voters was in the field May 22nd-23rd, 2018. The survey used a blended methodology with automated phone calls to landlines and online interviews of cell phone only respondents. The poll was conducted by Public Policy Polling for NPI, and has a margin of error of +/- 3.8% at the 95% confidence level.
When this data first came back five months ago, we were surprised to see such a high number of respondents answering “not sure”. Three out of four respondents picked that option. We were also surprised to see Choi ahead of Gonzalez.
Only one respondent out of ten said they were voting for Gonzalez.
“Not sure” isn’t an option on the general election ballot. But that doesn’t mean Gonzalez will win. He may be the only credible candidate and the only candidate to have received favorable ratings (or any ratings, for that matter) from bar associations, but voters won’t see that information on their ballots. With information about this contest not widely available, many voters may not be able to distinguish between the superb, multilingual jurist and the admonished attorney.
NPI finds the lack of coverage this race and other judicial races have received to date extremely alarming. That’s why we’ve decided to share this poll data.
We’d like to see more research conducted before the election to ascertain if voters are familiar with the Supreme Court candidates, and if they have a preference. We hope the publication of this finding galvanizes that research.
Neither Gonzalez’s name nor Choi’s name were on the Top Two ballots voted by the 1,753,545 Washingtonians who cast ballots back in the summer, so we do not have any data from the qualifying election Washington holds to compare these poll results to. This is because state law provides that a Supreme Court race with fewer than three candidates appears only on the general election ballot.
It wasn’t always this way.
Years ago, state law allowed Supreme Court races to be decided in the Top Two election. If any candidate received a majority, their opponent(s) were eliminated, and that candidate had the general election ballot to themselves. This is what happened in 2012, the last time Gonzalez ran. He defeated Bruce O. Danielson in the August Top Two and then was unopposed in the November general election.
Although Gonzalez’s August 2012 margin of victory over Danielson wasn’t particularly close, Gonzalez didn’t win a single county east of the Cascade Mountains. He also didn’t win any of the counties in Southwest Washington.
The new system is without a doubt better than the old system. Under the previous statute, Supreme Court races were effectively being decided in the Top Two as opposed to the general election, when a lot more voters participate.
However, a side effect of the new statute is that a justice like Steve Gonzalez doesn’t have an opportunity to build name recognition in the Top Two like a legislative candidate would. In Washington, legislative candidates appear on the Top Two ballot regardless of how much competition they have. They could be unopposed, or have only one challenger; it doesn’t matter. Their names will still appear.
Incumbency is ordinarily a major electoral advantage, especially for a statewide position. But since justices like Steve Gonzalez serve long six-year terms, receive minimal exposure in the mass media during their tenure, and are restricted in how and when they can campaign for reelection by the Code of Judicial Conduct, they may lack the name recognition that their executive department counterparts (who are also elected statewide) would usually enjoy at election time.
Gonzalez’s colleagues appear to share our concern that many voters might not be able to distinguish between him and his opponent. Recently, Justice Mary Yu, one of Gonzalez’s colleagues on the high court), authored an op-ed addressed to the Asian American Pacific Islander community titled: “When Voting for Judges, Don’t Be Fooled by the Name — Vote for Justice Steve Gonzalez”.
“An ‘Asian sounding’ name might be attractive to our community, especially if you do not have sufficient information about his lack of qualifications,” Yu wrote, referring to Gonzalez’s challenger. “But, please don’t be fooled by a name.”
Gonzalez has raised $322,105.31 for his reelection to date (with over half that sum still unspent according to the most recent reports filed with the PDC), so he has the means with which to connect directly with many voters in these final days.
But not every voter will see a campaign’s paid ads.
Last week, ballots were mailed out to the vast majority of Washington’s more than 4.2 million registered voters, with military and overseas voters having already been sent theirs last month. As of Monday afternoon, 51,158 ballots had come back to county auditors, with over 98% yet to be returned.
With most ballots still in voters’ hands, now is the perfect time for media and civic organizations to shine a spotlight on judicial contests.
How about it, KOMO, KING, KIRO, KCPQ — can you spare some time on your upcoming newscasts to cover these judicial races?
It’s not just the Supreme Court contest that needs attention. I’ve discussed it extensively in this post, but there are also races for Superior Court, District Court, and Municipal Court in many jurisdictions. Here’s a list of positions in Washington that have more than one candidate (and thus should be prioritized for coverage):
- Judge of the Court of Appeals (Division 1, District 3, Position #2)
- Grays Harbor County Superior Court Judge #3
- Chelan County Superior Court Judge #2
- Chelan County Superior Court Judge #3
- Spokane County Superior Court Judge #10
- Northeast Electoral District (King County) Judge #1
- Shoreline Electoral District (King County) Judge #1
- Cascade District Court (Snohomish County) Judge #1
- Pierce County District Court Judge #3
- Pierce County District Court Judge #6
- Tacoma Municipal Court Judge #3
- Spokane District Court Judge #1
- Cowlitz County District Court Judge #1
- Cowlitz County District Court Judge #2
- Cowlitz County District Court Judge #3
- Benton County District Court Judge #1
- Chelan County District Court Judge #2
- Clallam County District Court Judge #1
- Clalam County District Court Judge #2
- Mason County District Court Judge
- Stevens County District Court Judge
- Whitman County District Court Judge #1
- Kitittas Lower County District Court Judge
- Douglas County District Court Judge
- Jefferson County District Court Judge #1
- San Juan County District Court Judge
- Garfield County District Court Judge
The recent proceedings in the United States Senate regarding the confirmation of Brett Kavanaugh have reminded us how important the judiciary is.
The courts really matter, and not just at the federal level.
In the past three weeks alone, the Washington State Supreme Court ruled that the death penalty as has been applied is unconstitutional, and followed that up by holding that life sentences for youth are also unconstitutional.
Those were landmark decisions that will profoundly affect our state’s criminal justice system (and for the better, I might add).
The cases that reach the high court are usually first litigated in a trial court, and those courts are no less important. Voters get to decide who sits on the Superior Court bench in many jurisdictions this year too. And finally, there are the District and Municipal Courts, which are the courts citizens are most likely to interact with, as they handle cases of driving under the influence and civil traffic infractions.
Long ago, a decision was made that judges around these parts should be elected, and we still have that system. Whether or not it makes sense to keep it is a discussion for another day. At present, there’s an election going on, and voters could really use more information about the judicial contests on their ballots.
We’ll try to do our part here on the Cascadia Advocate by covering as many judicial races as we can between now and November 6th. We hope other media organizations and civic organizations will do the same.
POSTSCRIPT: Readers can expect a post here on the Cascadia Advocate about the Court of Appeals contest in Division 1 by the end of this week.