Back to the “Honor System”: Judge Deals Major Blow to Election Security

Yesterday a federal district court in Seattle handed down a decision that undermines the security of your ballot this fall. The case is called Washington Association of Churches v. Secretary of State Reed, and is the brainchild of a New York-based group called the Brennan Center for Justice.

If you’ve never heard of them before, don’t feel bad. All through the recounts and lawsuits of the 2004 gubernatorial election, and despite the thousands of legal voters who were disenfranchised by illegal votes and counting errors, the Brennan Center hasn’t once stepped foot into the state of Washington to help bring integrity (or what one might call “justice”) to our elections system.

Now they’ve finally stepped in, but what they’re seeking can hardly be called justice.

Three months ago the Brennan Center filed a lawsuit on behalf of the church association and similar groups against Secretary of State Reed, with the purpose of decreasing election security. Its beef was with how our state adds people to the voter rolls.

Because of a new federal law, in 2004 the legislature passed a bill requiring every new voter registration to be matched against a person’s driver’s license or social security file. This ensures people are who they say they are, and helps catch any errors before the new registration is added to the system.

This system has been working well, although not perfectly since the licensing and social security databases aren’t flawless. Sometimes the state has to contact a voter to make sure everything matches. But if the state makes an error, there’s a failsafe for the voter: If the registration has not been ironed out by Election Day, the person can still vote a provisional ballot, which will be counted once the voter proves his eligibility. No one is disenfranchised by the matching requirement.

In their lawsuit, the Brennan Center attorneys claim the opposite; they say “tens of thousands” of voters would be disenfranchised. Ironically, their victory in court on Tuesday makes voter disenfranchisement much more likely.

Why? Because removing the “match” security procedure is like declaring open season for voter registration fraud. Anyone can make up an identity, fill out a registration form, and be registered to vote this fall. Or a registration containing errors will create a duplicate voter file. And if an ineligible voter disenfranchises you by casting an illegal ballot, too bad. There’s no failsafe option for you; your ballot gets cancelled out.

Judge Ricardo Martinez granted Brennan Center’s request for a preliminary injunction, stopping the “match” process for the 2006 primary and general election. He ruled that the state didn’t show why matching a voter’s information was necessary to prove a person’s eligibility, and that such a law conflicted with the federal Help America Vote Act. But what is more important for voter eligibility than a valid name, address, birth date, and other identifying information?

Washington voters have already seen how poorly the election system works when it operates on an “honor system.” Martinez’s decision forces election officials to take the word of the voter. He also missed the phrase in the Help America Vote Act allowing states to enact verification standards stricter than the federal requirements. The Washington law improved on the federal Act, it didn’t conflict with it.

The judge even had the audacity to cite the 2004 gubernatorial election as a reason to register voters without verifying their identity. He says:

“Defendant argues that the public’s interest in preventing voter fraud weighs against an injunction in this case. The Court disagrees. Given Washington’s most recent governor’s election, where the winner was decided by just hundreds of votes, the Court finds that the public interest weighs strongly in favor of letting every eligible resident of Washington register and cast a vote.”

But, of course, now the judge won’t allow the state to actually verify eligibility…

We hope Secretary of State Reed and Attorney General McKenna will take whatever steps necessary to fight this attack on our election security.

Jonathan Bechtle works on EFF's Voter Integrity Project. Prior to joining EFF, he served as the Senior Legal Assistant at the Home School Legal Defense Association in Virginia. He has also worked as an aide for Senators in Georgia and as an analyst for the Indiana Attorney General. Jonathan earned a juris doctorate from Oak Brook College of Law in Fresno, California.

From Judge Martinez's webpage,

"If you really want to do something, if you truly want to have an impact, if you want to make a real difference, law is the field."

Hon. Ricardo S. Martinez
United States District Court Judge
Western District of Washington

The Honorable Ricardo S. Martinez graduated from Lynden High School. He received his Bachelor of Science degree from the University of Washington in 1975, and his Juris Doctorate degree from the University of Washington School of Law in 1980. His family was one of the first Latino families to stay in Whatcom County year round, instead of simply living there during the seasons for picking crops and working the fields as most other migrant families did. He was the first person in his family to graduate from high school, and the first to attend college.

He currently serves as a United States District Judge for the Western District of Washington. He was nominated by President Bush on October 12, 2003, and confirmed by the Senate on June 15, 2004. He had previously served as a U.S. Magistrate Judge for the Western District of Washington for six years and as a King County Superior Court Judge for nine years. While a judge in Superior Court, he was responsible for setting up the first Drug Diversion Court in Washington state. Prior to becoming a judge, he worked as a prosecutor in the King County Prosecuting Attorney's Office.

When did you first become interested in pursuing a career in law?

It was in high school that I first began to think about becoming a lawyer. I think part of it was simply seeing the struggles that my parents endured in their daily lives, and understanding that a lawyer's job is to make things easier for other people. Lawyers were able to accomplish things for their clients when the clients couldn't do it for themselves. Lawyers understood the bureaucracy that permeates our entire society and were able to work their way through all of that in order to get things done for people. But it was in college where it was really driven home to me that if you really want to do something, if you truly want to have an impact, if you want to make a real difference, law is the field that you should go into.

I came to college during a very turbulent time - there were civil rights marches, Vietnam War protests. As students we were acutely aware during the early 70s of what was going on in the world. I believe that we saw ourselves as individuals who had a place in our society and needed to do something positive. So that was when I first started looking at who runs things in our society? And it became pretty obvious that the majority of the people in power were lawyers or were legally trained. So, it made sense that if you want to change the system, you can either try to change it from the outside, which historically has not been very effective, or you can try to change it from the inside. I think it was a real sense of social justice that said to me - go to law school, and that would make it possible for me to do some of the things that I wanted to do in a socially accepted manner.

Were there any obstacles that you felt you really had to overcome to become a lawyer?

Amazingly enough, it's not until after you go through law school and become a lawyer that you realize how many others simply don't get that opportunity that we've been so lucky to have. I've always been an optimistic person about life. Maybe a little too optimistic at times. I don't want to sound overconfident, but I always felt that if I really put my heart and soul into trying to accomplish something, that I could do it.

The other thing that I've always been able to do is set goals. I've always set short-term goals and long-term goals, and then began working immediately towards the short-term goals. I would break each goal down into smaller little chunks and say, okay, that's my long-term goal, so what do I need to do today, what do I need to do tomorrow, in order to accomplish this goal. I think a lot of that comes from my upbringing and the direct influence of my parents. They, of necessity, literally lived day to day. They had the very real concern of having to worry daily about putting a roof over their kids' heads and how much food was going to be on the table. That makes life very real. And you learn the necessity of setting immediate goals as well as having to plan for the future.

So even now, if I come to a fork in the road, and I can't go right, then I simply go left, or go around whatever the detour is, go over whatever the hill happens to be. Thankfully, I still haven't found anything in my life that presented too big of a hurdle that I couldn't do one of these things. That has left me with the belief that the only one that can really stop you is yourself — that's the only real hurdle that you've got. So, so long as you're not battling yourself, hey, anything else can be accomplished.

What experiences have influenced you the most in your journey?

Nobody that I know has ever achieved any significant goals without the help of many other people. There are so many people in my life that have had such an impact. Going all the way back to my elementary school teachers. I was one of the first Latino kids to stay in the Whatcom County area, to stay, meaning year round, a lot longer than simply staying during the seasons for picking crops and working the fields as most other migrant workers do. This meant that I was able to attend one school. To set roots down and become known to the teachers. There was an early recognition that I was smart and the label from my teachers meant a lot to me. And, since they thought I was smart, then I had to be smart in order to live up to that expectation.

The other thing that had a major impact on me had to do with the dynamics of my own nuclear family. You see, my parents could not speak English. So they had me serve as an interpreter for them in a lot of situations. It put a tremendous amount of pressure on me at a very early age, to be more concerned about the realities of life and to understand what's going on in the grown up world. At age 11 and 12 I was involved in situations that other kids would never get involved in, like negotiating for a car with a used car salesman or translating what doctors were saying to my parents. I remember having these very, very serious discussions, about life and death matters with doctors and I'm 12 years old. I'm translating and I'm watching the impact all of this is having on my parents. They, in turn, put a tremendous amount of faith and trust in me.

All of that came together to instill a real sense of responsibility, a sense of understanding just how hard my parents were working in order to make the best life they could for our family. I truly understood the limitations that were placed on them because of a lack of resources, a lack of money, and their inability to speak English. That inability to communicate was a pretty major one. So it was obvious to me that the last thing that I ever wanted to do was disappoint my mom and dad. So anything that I tried to do after that was always tempered with that thought in mind. In other words, if I was going to do something, then I was going to give it my all, because it was more than just for me. My parents had a tremendous impact on making me the person that I am today.

What advice would you give children of migrant families as they try to balance that lifestyle with their pursuit of their goals and their dreams?

Many migrant parents have not had an opportunity to go to school. For them, it can be a tough leap to place much value on getting an education. Hopefully, these kids could have the kind of parents that I had. Parents who felt so strongly about educating their children precisely because they had not had that opportunity. My parents understood that because of this lack of education they were working much harder than others just to make ends meet.

But what I would say to these children is that you need to work within your family dynamics, but you also need to understand that ultimately the goal is that you have a better life in whatever way you want to measure that. And it is your responsibility to dream even if others around you cannot. Whether it's a particular job or career, whatever your specific goals are, it is up to you to work hard and have a better life than your parents. You owe that to yourself and to your own children as well.

What advice would you have for high school or college students who are interested in law?

I would tell them that law is an incredibly exciting field in which to work. However, every single one of us has to decide what it is that we really want to do in life. There isn't a single person that I know of that's born knowing exactly what it is they want to do. We ultimately get there, sometimes by trial and error. You should try to be logical about how you make this decision. The most important thing is that you want to end up in a profession, hopefully, where you are happy with what it is that you are doing. You need to figure out for yourself what it is that gives you that type of passion. If you have a passion for what you do, you're going to do it well, and you're going to enjoy living your life that way. You don't have to be bound by tradition.

Then the very next step — once you decide what you want to do is how do you get there? And that's where you could use the help of a mentor. That's where you need to start reaching out. For example, if you want to become a judge — maybe you should at least go see what judges do, find out what their job really is, and maybe even contact a few and get a chance to talk to them if possible.

What role do you think diversity plays in law?

I think it's a critical area. The more diverse any field is, the more melding of all those different flavors you get in there, the "tastier" everything becomes. Diverse individuals bring a much wider perspective to play in making day to day decisions. Diversity also increases tolerance and understanding of others and ultimately, it shows us how the differences amongst us are really minor compared to the commonalities that we share. I think many times, people are afraid, they simply fear the unknown, and when you work with someone of a different faith or you work with someone of a different race or a different cultural background, you begin to understand how much more we have in common as human beings and the differences melt away.

I think that diversity is good for everyone but it's absolutely critical in the law. Every single individual in our society has to believe that justice is real and achievable for all. As I have always believed, justice should be blind but every member of our society needs to see himself or herself reflected in that system if they are truly to believe that it applies to them.

As you started practicing as a young attorney, what challenges did you face?

When I came out of law school and started working with the King County Prosecuting Attorney's Office, everything was challenging. I didn't know what to expect, how things were going to work. I had been a Rule 9 intern for the summer, but once I really got into the office and was working there full time, it was like, boy, this is a lot of work. That's something that young people today need to understand. It doesn't just come easy. If you want to be successful, it's a lot of work, no matter what kind of law you practice. You have to really put in the time and the effort to succeed. You're not born knowing how to make legal arguments or how to select a jury. So the challenges were there every step of the way, but at the same time, they were challenges that I eagerly looked forward to because of the passion that I felt for the job. I wanted to know how to do things, and the best way to do them and day by day I was learning how to be better and better at what I did.

What role did mentors play for you?

Well, I can't overstate how important it is to make a connection with someone who has been there. Someone who has been through everything that you want to go through or want to become. I wouldn't be where I am right now without the people in my life that have served as mentors to me, both officially and unofficially.

If it hadn't been for Justice Charles Z. Smith, who was an assistant dean at the University of Washington School of Law when I applied, I might never even have gotten into a law school. Justice Smith also was the one who suggested to me that if I wanted to be a trial lawyer I should apply to the prosecutor's office for an externship, because it would ultimately make me a better criminal defense attorney.

All of the years that I worked in the prosecutor's office, I essentially worked for one boss – Norm Maleng, who is also from Whatcom County. Norm taught me what being a professional in this field really meant, and he constantly reaffirmed that character counts at all levels. He would make decisions based on character, principle and justice, always searching for justice, and it always made me feel good to work for a man like that.

Unofficially, my wife has had a tremendous influence on me. We have known each other since her freshman year in college and we have accomplished so much because of our teamwork.

Where do you think law has changed the most since you entered the profession?

I think there have been some major changes over the last 25 years. Unfortunately, I think lawyers still get a bad rap in our society. At the same time, it's fascinating to be in this profession and to see what a tremendous impact it has, not only in our country but in the rest of the world. One of the things I do is host people from different countries through the World Affairs Council. Most of them are lawyers — many are judges. They're all coming to the United States because they want to see what we do and how we do it. They leave, I think, with a tremendous respect for what it is that we do. I think you can literally say that we have one of the best justice systems in the world and I'm very proud to be a part of that.

I think that some of the changes that we're seeing that have been bad have been in the areas where we as lawyers gravitate more towards the money and away from things that matter such as principle. So many of us get caught up in just trying to make money that more important things go out the window. We need to make sure that every single lawyer, every single one of us, acts responsibly and always remembers that we have the privilege to practice a noble profession. So whatever kind of lawyer you are, regardless of the area you're focused on, you can still make an impact because it is a system about people.

Another major change is how much impact alternative dispute resolution has had on actual trials and trial practice. I'm afraid that, if the trend keeps going the way it is, trials may eventually vanish from our courts. I think that would be a terrible thing for society.

When you look at the legal field, what one thing would you like to see changed?

As a person of color, I believe that the legal field needs do the best it can at every level to increase diversity. It's one of the reasons why I became a member of the WSBA Leadership Institute. As our society becomes increasingly diverse our justice system needs to follow suit. Ultimately, although we may argue complex legal issues or engage in fascinating intellectual discussions dealing with arcane areas of law, we must always remember that law is all about people. And those people have to believe in us in order for our system to be accepted and continue to work.

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