Justice Richard B. Sanders
  • Washington State Supreme Court
  • Justice Richard B. Sanders
Yesterday I called the race for State Supreme Court Position No. 6 in favor of challenger Charlie Wiggins, and said I'd explain this morning what I think happened in this intense, down-to-the-wire contest. Here goes.

First, though, a step back for some perspective: Nationally, the dominant story about state supreme court races this election cycle has concerned the removal by Iowa voters of three state supreme court justices who backed same-sex marriage in that state. Here, the result in this high court fight cut in the opposite direction—something that should probably be noticed beyond Washington State as the meaning of these mid-term elections is digested.

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Here in Washington, in a year that saw a conservative resurgence elsewhere, voters held on to Democratic Senator Patty Murray and ousted a sitting state supreme court justice, Richard B. Sanders, who in 2006 sided with the conservative wing of our state court by ruling that Washington's ban on same-sex marriage is justified, and should continue, because of "the unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing." He was, by his campaign's own description, "the deciding vote" in that case.

Justice Sanders's gay marriage ruling wasn't the only issue in this race, of course. But it was a big issue here in liberal, gay-friendly King County, where more than 58-percent of voters have backed Wiggins in returns so far. If not for the large pro-Wiggins margin in King County, Justice Sanders, who at present is down by just 3,603 votes, would be headed for six more years on the high court.

So that's the broad context in which I see this result. Now, one more thing before I get into specifically what happened:

A quick explanation of why I think this race is over even though the margin remains relatively close and the counting is not totally finished. As others (Slog commenter michaelp first among them) calculated some time ago, Wiggins is on track to end up with a solid lead over Justice Sanders by the end of this week because of the roughly 81,000 ballots that remain to be counted in King County. There are other ballots still to count in more conservative counties around the state, sure, but not that many, and King County's remaining ballots will have the dominant effect on the race. By the end of the week, Wiggins will still have a lead of more than 2,000 votes (below which an automatic recount would be triggered). It will most likely be a lead of more than 4,000 votes. And it could easily be a lead of something near 10,000 votes.

Predicting exactly what the margin will be is beyond my math skills, but I can say this: It's just not plausible to believe, as Justice Sanders seems to, that a Wiggins win can be prevented if only the campaign of Justice Sanders is able to "rehabilitate" thousands of ballots around the state that have been rejected because of signature issues.

The deadline for doing this kind of rehabilitation, as I understand it, is Nov. 22, only 12 days away. The Wiggins campaign, well aware of Justice Sanders's interest in ballots with signature problems, is launching its own ballot rehabilitation effort starting this morning. There's no reason to think this statewide scramble by both campaigns—in which both campaigns will try to fix the signature problems of their most likely supporters—will result in anything other than a statistical wash. The overall number of ballots counted could increase, yes, but as long as the campaigns of Justice Sanders and Charlie Wiggins are roughly equal in their ballot-chasing abilities, which should be the case, then those "rehabilitated" ballots will split along lines similar to what we've seen already statewide, and Wiggins' overall win will not be erased.

Charlie Wiggins
  • Kelly O
  • Charlie Wiggins
And now: How did a 15-year-incumbent manage to lose this race?

The ousting of a sitting state supreme court justice is a pretty rare occurrence in Washington, but Justice Sanders knows it's possible because he did it himself once. He originally got onto the court by ousting Rosselle Pekelis, who had been appointed in the spring of 1995 by Governor Mike Lowry, to fill a vacancy when another justice suddenly resigned.

Justice Sanders's 1995 campaign against Pekelis is worth revisiting today in light of his defeat at the hands of his own challenger. In 1995, Pekelis was endorsed by all but one newspaper in the state (the King County Bar Association rated Pekelis highly, and found Sanders "not qualified"). But Justice Sanders saw a route to removing her, and ran a campaign that involved casting Pekelis as "the Lowry appointee" at a time when Lowry was extremely unpopular because of a sexual-harassment scandal, questioning Pekelis's support for gun rights, and drawing the attention of social conservatives to a particular ruling Pekelis had participated in while on the court of appeals. That ruling? Pekelis found against an Orcas Island woman who'd put her child up for adoption and then decided she wanted the child back after she discovered a gay couple in Seattle were the adoptive parents.

All of which is to say that Justice Sanders knows an incumbent can be toppled if the challenger has the right ammunition and strategy.

This year, Justice Sanders ran a race that banked on his ability to continue playing the political chameleon, as he has throughout his career.

Based on his status as a self-described libertarian, Justice Sanders showed up at both the Republican and Democratic state conventions, spoke about marijuana law reform at a meeting of the ultra-liberal 43rd District Democrats, and was one of the main draws at a Tea Party rally in Spokane. Tea Partiers, Seattle lefties, Republicans, Democrats—that is, to put it mildly, a pretty broad constituency. Justice Sanders, in a September interview, told me he sees it this way: "Any reason to vote for me is a good reason."

What caused that huge—and somewhat unnatural—coalition of voters to crack is simply increased attention to Justice Sanders.

Specifically: increased attention to his public record as compared to his private conduct (which involves two divorces and multiple simultaneous girlfriends even though the opinion he signed in Washington's same-sex marriage case praised heterosexual couples as being uniquely suited to monogamous, long-term relationships), plus huge attention to recent statements he made suggesting racism plays no role at all in the high African-American incarceration rates in this state.

But the key word in all of that is attention.

State supreme court races usually get almost no attention. The rulings that form the basis of campaigns for the high court are complicated and hard to explain in sound bites, the candidates themselves generally have muted personalities, and the overwhelming belief among the political class (a belief that appears not to have undergone much chicken vs. egg analysis) is that voters really don't care about these races anyway.

Clearly that last assumption is wrong, and in a contest that—as always—received virtually zero television coverage and involved no television advertising (because both of the candidates only raised around $275,000 each and therefore couldn't afford any), it's easy to figure out the major factors that caused voters to focus on the Sanders-Wiggins race.

On Oct. 5 The Stranger published my feature exploring Justice Sanders's record—how his professed libertarianism interacts with his deep Catholicism and anti-abortion stance, for example—and looking at how his multiple divorces and multiple girlfriends interact, in his mind, with the language he signed on to in the same-sex marriage case. It was the longest feature that's ever been written about him, and likely the longest feature ever written about a state supreme court justice in Washington. Then, on Oct. 21, the Seattle Times published a story by Steve Miletich that quoted Justice Sanders saying that high African-American incarceration rates in Washington State are not at all connected to institutional racism, and are more about that community's "crime problem."

Miletich's article, which impressively dug inside a private Oct. 7 meeting on race and the criminal justice system that Justice Sanders attended in Olympia, received by far the most attention. African-American leaders denounced Justice Sanders's point of view, the Seattle Times loudly withdrew its endorsement of Justice Sanders because of his reported comments, and Wiggins sent out e-mails to his supporters alerting them to the news.

Which was, indeed, big news.

But—and this is awkward to do because it involves my own story, but it can't be avoided here—my Stranger feature also received a large amount of attention, especially in King County and Olympia, and in a race that's probably going to be decided by under 10,000 votes (and hinge on the high turnout in King County) that means my piece was potentially determinative. We talked about my story on KUOW's Weekday for several weeks in a row in October, The Stranger's endorsement of Wiggins ran repeatedly on our election cheat sheet throughout the month, and I know from my e-mail in-box that my feature circulated heavily in the gay and legal communities. This is not to get into competitive credit-taking, but simply to say that in a race as close as this one, all of the credible contributing factors were necessary to the outcome.

To put it another way: Many thousands of votes may have been moved by the Seattle Times' coverage of this race, but some thousands of votes were also moved by my coverage. With only a few thousand votes separating the candidates, it seems to me that both articles—plus, of course, the original actions by Justice Sanders that led to them—were the condition without which this could not have occurred.

Other conditions without which this could not have occurred: Intense interest in the Murray v. Rossi race in King County, strong get-out-the-vote efforts by the local Democratic machine and grassroots organizing groups, and Wiggins' own campaign, which only gingerly engaged with all the October news about Justice Sanders while focusing on keeping close in the fund-raising race, collecting endorsements (especially from law-and-order types who don't like Justice Sanders's record of siding with certain criminal defendants against the state), and hammering a message that questioned Sanders's fairness, impartiality, and judgment.

As Wiggins' campaign consultant, Christian Sinderman, told me in an e-mail last night:

Many will argue that the race was lost by Sanders, not won by Wiggins, but it’s more complex than that. In any down ballot race statewide, especially against an incumbent (and especially in a year favoring conservative candidates), the key is to best position yourself so that if your opponent makes a mistake, you can take advantage of it and win. Charlie ran a strong and focused campaign, and was in the right place when Sanders started unraveling. Sanders lost, but only because Charlie was winning.

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Justice Sanders hasn't responded to a request for an interview about the election results, but here's a question I'd like to ask him: Why didn't you say this publicly, and loudly, before election day?

Sanders also told The Associated Press on Monday [November 8] that his comments regarding race were misconstrued.

"My view is that crime is a choice and that depending on our circumstances, that it becomes an easier one or more difficult one," he said. "I would never say, nor do I believe, that people commit crimes because of their race."

This statement would have been so easy to make on Oct. 22, when the initial Seattle Times story hit (or even before that, when reporter Steve Miletich called Justice Sanders to confirm his race comments, and Justice Sanders stood by them). Yet Justice Sanders didn't do this.

Why?

I keep wondering, and I keep thinking back to something his ex-wife told me: "He's not afraid to stand alone." In fact, he rather seems to like doing so. It's a stubbornness that has made him one of the most prolific—and controversial—dissenters on the court. But this instinct for being the one who radically departs from what he dismissively calls "the latest political correctness," and who does so with relish rather than apology, has only made the 65-year-old justice (who as a young man pushed hard against the prevailing views around him by writing an inflammatory 1968 University of Washington Daily column that said Dr. Martin Luther King's assassination "looks like suicide to me") seem more and more fixed in archaic notions, and more and more retrograde, with the passage of time.

That served him poorly in a contest that was decided by the most progressive and urban parts of this state.

I wonder, though, whether Justice Sanders knew this was likely to be the case—that liberal King County could easily determine his fate—and thought that perhaps being seen as a tough-on-crime, somewhat racist judge actually might help him with certain members of his coalition who live far outside the Seattle metropolitan area. (Remember what he says: "Any reason to vote for me is a good reason.")

We'll probably never know for sure, and in the end it doesn't matter.

What matters is what a majority of voters saw: A state supreme court judge who, after 15 years on the high court, had so offended their sense of justice that they simply didn't want him on the bench anymore.