Washington is one of 23 states that require voters to choose their supreme court justices. You'd think that would mean that voters here pay extremely close attention to whom they pick for the state's highest court. But most voters know very little about our supreme court and even less about the candidates running for it. Compounding the problem: Judicial races here are nonpartisan—meaning there's no helpful "Democrat" or "Republican" next to the candidates' names.
You should be. In 2004, liberals in King County turned out in huge numbers to vote in the presidential election but apparently dozed off before they got around to marking their choice in a down-ballot state supreme court contest. As a consequence, King County liberals handed a spot on the high court to "the court's most consistent and avowed conservative," as the Seattle Times describes him. Political consultant Lisa MacLean, who has been involved in judicial races for years, explains: "The progressive community was asleep."
Now is the time to wake up. That conservative justice, Jim Johnson, is up for reelection, and progressive leaders are vowing to take him down. Johnson's sole challenger: Stan Rumbaugh, a Tacoma lawyer and former Planned Parenthood board member who says he's confident he can win if liberals turn out to vote. Thanks to the convoluted rules of our state's new top-two primary, the race for this supreme court position will not be decided in November, when more voters will show up, but rather this month, in the primary, when fewer voters will be paying attention. (Secretary of State Sam Reed predicts the primary turnout will be 38 percent of registered voters.)
Which means progressives need to get the word out about booting Johnson and replacing him with Rumbaugh. Right now.
T o understand how progressives plan to pull off unseating Johnson—and why so much of their plan hinges on the vote of people like you right here in King County—it's necessary to understand exactly what happened last time around.
In 2004, the race for State Supreme Court Justice Position No. 1 featured two contenders with obviously partisan backgrounds. One was Johnson, a lawyer who'd previously worked for right-wing initiative peddler Tim Eyman and Republican Slade Gorton (when Gorton was attorney general). On the trail, Johnson busily blew through a total of $420,000 that the conservative Building Industry Association of Washington (BIAW) and its allies had given him as part of their multiyear effort to make him their man on the bench. The other candidate in the race was Mary Kay Becker, a respected lawyer and former Democratic state legislator who'd risen to a seat on the state court of appeals. Though she didn't have nearly as much money as Johnson, she had other things going for her. The Seattle Times endorsed Becker, calling her a reasonable centrist. The stodgy Municipal League rated her "outstanding" (as opposed to Johnson, whom they found only "adequate"). The Washington State Labor Council, the Women's Political Caucus, and the Washington Conservation Voters all endorsed Becker, too.
But Becker lost, outspent three-to-one by Johnson and his BIAW money. Even more dispiritingly, Becker was abandoned at the polls by hundreds of thousands of progressives. In that same election, more than 1.5 million Washingtonians voted for John Kerry for president, turning our state blue on electoral vote maps even as the country as a whole went for George W. Bush. An equal number of Washingtonians voted for Patty Murray, giving her a third term in the U.S. Senate. But only about one million Washingtonians voted for Becker, the liberal candidate for state supreme court.
She lost by just under 92,000 votes—when there were roughly half a million progressive-leaning voters who had made it their business to vote in 2004 and could have voted for Becker, but as they were marking their ballots for some reason chose not to (probably because they hadn't learned anything about her race).
Political geeks call this phenomenon "voter drop-off."
Here's the direct line from that giant, preventable drop-off to a subsequent giant defeat for the Washington progressive community: Two years later, in 2006, Johnson, happily ensconced on the state supreme court, wrote an opinion strongly supporting the court's 5–4 decision to uphold Washington's ban on gay marriage. In that opinion, he compared gay marriage to polygamy and said that households headed by heterosexual parents are "a better environment for children" than households headed by same-sex parents.
Since the vote was 5–4, a different justice in Johnson's seat could have meant a different ruling. Same for a raft of close court decisions over the last few years in which Johnson's opinion tracked neatly with what the BIAW, in amicus briefs, said it wanted the justices to decide.
Supreme court justices in our state get six-year terms, which is a long time. "This is probably our last shot at getting this guy off the bench," says MacLean, referring to Johnson. "Once he is reelected, it will be even tougher and more expensive—and it won't come up again until 2016."
Rumbaugh calls Johnson a bought-and-sold conservative "activist judge" (to support this, he points to Johnson's decisions in cases his BIAW backers had an interest in and Johnson's refusal to recuse himself from those cases). Rumbaugh disagrees with Johnson's belief that minors have a right to possess guns (Johnson justifies his position on the grounds that 11-year-olds fought in the Civil War). And on marriage Rumbaugh says: "I don't see anything in the Constitution that says two people of the same sex can't marry."
Progressives are putting out the word about the stark difference between Rumbaugh and Johnson with fundraisers, Facebook attacks, and reminders to liberals that the court will undoubtedly be ruling on issues they care about—including, perhaps, gay marriage—over the coming years, making this election urgent.
"Last time," says Josh Friedes, executive director of the gay advocacy group Equal Rights Washington, "we learned a lesson. Washington citizens paid dearly. This time, we are doing our work."
This time, the progressive community is determined to make a loud ruckus so that liberal voters, in Friedes's words, come to "fully appreciate the gravity of the situation." This time, partly in response to Johnson's BIAW-bankrolled election in 2004, there are strict limits, enacted by the state legislature in 2006, on how much money candidates for the high court can accept from individuals and interest groups. And this time, there's more precedent for liberals mobilizing to win in situations like this.
In 2006, progressive-backed supreme court justice Susan Owens (who was part of the minority in the 5–4 gay marriage decision) was reelected by a nearly 10-point margin, despite being far outspent by her conservative challenger. Why the reversal of fortune for progressives between 2004 and 2006? Because in 2006, there was a much lower voter drop-off in liberal bastions like King County. Meaning urban progressives were paying attention—and it made all the difference.
Then, last year, a huge push by urban progressives led to the passage of Referendum 71, which confirmed the state legislature's decision to extend almost all of the rights of marriage to same-sex domestic partners. The measure's margin of victory in King County alone was about 203,000 votes—almost twice the overall statewide margin of victory of 113,000 votes. "What we saw in the R-71 campaign," Friedes says, "is that when progressive voters care passionately about an issue, they can change an outcome."
According to polling by an independent political action committee working to defeat Johnson, 73 percent of people are undecided in this race, mostly because they don't know much about it. Meaning the race is wide open. Have you voted yet? Right now is your only chance.