Retention Redux: Iowa 2012
Pettys, Todd E., Journal of Appellate Practice and Process
On April 3, 2009, the Iowa Supreme Court's seven members ruled unanimously in Varnum v. Brien (1) that the state's statutory ban on same-sex marriage violated the equality clause of the Iowa Constitution. Nineteen months later, three of those justices--Chief Justice Marsha Temus, Justice Michael Streit, and Justice David Baker--lost their jobs when Iowa voters denied their bids for retention. (2) It was a remarkable victory for social conservatives and their leaders, including Iowa for Freedom (an anti-retention organization founded by Iowa businessman Bob Vander Plaats, who had recently suffered (3) his third defeat in a Republican gubernatorial primary), the Mississippi-based American Family Association, and the New Jersey-based National Organization for Marriage, among others. (4) It was a staggering defeat for the three ousted justices and for those who believed it was inappropriate to use the retention election as an opportunity to express disapproval of Varnum.
Things played out differently when a fourth member of the Varnum court--Justice David Wiggins--stood for retention in November 2012. Fifty-five percent of those casting ballots voted to retain Justice Wiggins, roughly the same percentage that voted to remove his three former colleagues two years earlier. (5) What accounts for that difference in the Varnum justices' political fortunes? I offer answers to that question here.
II. THE 2010 BATTLE AND ITS AFTERMATH
In 2010, Chief Justice Ternus, Justice Streit, and Justice Baker faced daunting obstacles in their bids to keep their seats on the Iowa Supreme Court. (6) Conservatives nationally were energized by the opportunity to make their voices heard in the first midterm elections of the Obama Administration, conservatives in Iowa were doubly energized by the opportunity to remove a politically vulnerable Democratic governor from office, and social conservatives in Iowa were triply energized by the opportunity to express their disapproval of the Iowa Supreme Court's role in legalizing same-sex marriage. Out-of-state organizations poured a substantial amount of money into the campaign against the three targeted justices, far outstripping the sum spent on those justices' behalf. (7) In their television advertisements and elsewhere, the leaders of the anti-retention campaign accused the justices of being elitist judicial "activists," whose "radical" ruling in Varnum portended a judicial threat to a host of valued freedoms. (8) National politicians echoed those themes in an effort to advance their own political aspirations. When campaigning in Iowa for the Republican presidential nomination, for example, Newt Gingrich urged Iowans to vote against the justices' retention in order to send the nation a signal that a "'citizen revolt'" was underway against "'dictatorial'" judges. (9)
The two entities leading the charge on the pro-retention side (Justice Not Politics and Iowans for Fair and Impartial Courts) were poorly funded by comparison and, as 501(c) organizations, were barred by federal law from squarely taking a public position on whether Iowans should vote for or against the justices' retention. (10) Rather than speak directly to the three justices' merits, these two organizations tried to persuade voters that it would be dangerous to inject politics into the selection and retention of Iowa's justices. (11) A better-funded 527 organization (Fair Courts for Us) arrived on the scene just three weeks before Election Day, likely too late to make much of a difference. (12) The Iowa State Bar Association similarly did not enter the fray until the final month, having felt obliged to hold off until the association's members were given a formal opportunity in late September to express their views about all of the judges and justices standing for retention that November. (13) Apart from a small number of appearances by Chief Justice Ternus in the days just prior to the election, the three justices themselves refused to campaign or speak publicly in their own defense. …