Three of the seven Iowa Supreme Court justices who concurred in the historic Varnum v Brien ruling on marriage equality lost their jobs in the 2010 judicial retention elections. A fourth survived a similar campaign against retaining him in 2012.
The last three Varnum justices, including the author of the unanimous opinion striking down our state’s Defense of Marriage Act, will appear on Iowa ballots this November. At this writing, no one seems to be organizing any effort to vote them off the bench. Iowa’s anti-retention campaigns in 2010 and 2012 were well under way by the end of August, but the social conservatives who spearheaded those efforts have shown no interest in repeating the experience.
Bob Vander Plaats, a three-time Republican candidate for governor and outspoken critic of the marriage equality ruling, led the 2010 campaign against retaining Chief Justice Marsha Ternus and Justices Michael Streit and David Baker. He announced plans during the first week of August, rolling out the inaptly-named “Iowa for Freedom” campaign a few days later.
Money poured in quickly to support the effort. As political science student Rosie Romano catalogued here, six groups reported some $990,000 in spending against retaining Ternus, Streit, and Baker: $635,627.95 from the National Organization for Marriage; $171,225.27 from American Family Association Action (the sole funder of Iowa for Freedom); $100,000 from the Campaign for Working Families; $55,996.63 from the Family Research Council PAC; $17,822.55 from the Citizens United Political Victory Fund; and $11,137.61 from Iowa Family Policy Center Action.
The largest share of that money went toward two television commercials. The first started running statewide in mid-September, blasting the “Liberal, out-of-control judges ignoring our traditional values and legislating from the bench, imposing their own values on Iowa.” During the last two weeks of the 2010 campaign, a second statewide tv ad urged voters to “flip your ballot over and vote no on retention of Supreme Court justices” in order to “hold activist judges accountable.” Independent expenditures also paid for a “Judge Bus” tour across Iowa, a radio ad featuring Representative Steve King, and robocalls seeking to identify and mobilize voters who opposed marriage equality.
Fueled in part by a Republican wave affecting races up and down the ballot in Iowa, the “no” campaign carried the day by margins of close to 81,000 votes on Baker, 86,000 votes on Streit, and 98,000 votes on Ternus. (The larger vote against the chief justice was a sad little snapshot of misogyny in Iowa.)
Vander Plaats followed the same playbook in 2012, announcing a “No on Wiggins” judicial retention campaign in mid-August. Justice David Wiggins had joined the Varnum opinion; the other three Iowa Supreme Court justices on the ballot that year were new on the court, appointed by Governor Terry Branstad to replace the judges ousted in 2010.
A television commercial went on the air about four weeks before election day, calling on voters to “hold David Wiggins accountable for redefining marriage and legislating from the bench.” The follow-up ad featured Tamara Scott, who identified herself as an “Iowa mom” but was better known as our state’s Republican National Committeewoman and Iowa director for Concerned Women of America.
Vander Plaats had correctly predicted the “No Wiggins” effort would be “a tougher campaign.” Although 567,024 Iowans voted against retaining Wiggins, more than the number who had voted against any of his colleagues two years earlier, Wiggins received 680,284 votes in favor of keeping him on the bench. Railing against activist judges did not resonate as well with the much larger presidential-year electorate. Public opinion had also continued to shift toward acceptance of marriage equality.
Going into this election year, I wasn’t worried about Chief Justice Mark Cady, who wrote the Varnum opinion, or Justices Brent Appel and Daryl Hecht, all of whom will be up for retention in November. If the Vander Plaats crowd had failed to take down Wiggins, surely any attempt to beat the drum against the remaining justices was unlikely to succeed now. In any event, the U.S. Supreme Court’s June 2015 ruling in Obergefell had taken same-sex marriage bans off the table nationwide.
Last year’s unanimous Iowa Supreme Court decision striking down a state ban on “telemedicine” for the use of abortion services drew condemnation from the FAMiLY Leader organization Vander Plaats has led since soon after the 2010 elections. However, the group hadn’t continued to gin up outrage over that ruling the way social conservatives had done following the Varnum decision.
I grew concerned about this year’s retention votes in April, when Iowa Secretary of State Paul Pate went on a rampage denouncing what he called a push to let “child molesters, murderers and rapists vote in our elections.” In newspaper columns and radio interviews, Pate asserted that those who want criminals to vote don’t represent Iowa values. In speeches to Republican audiences, he warned that “liberals want unelected judges” to “ignore the Iowa Constitution.”
At the time, the Iowa Supreme Court had recently heard oral arguments in Kelli Jo Griffin’s lawsuit challenging Iowa’s broad ban on voting by convicted felons. The court had not yet ruled on that case, and Pate’s public statements sounded like a preview of a campaign against retaining any justices who might find that not all felonies rise to the level of “infamous crimes,” which under Iowa’s constitution cause a person to lose the right to vote and run for office.
The rationale for Pate’s demagoguery evaporated on June 30, when Cady wrote the 4-3 opinion upholding current state policy on felon voting. The Supreme Court’s majority rejected arguments that would have enfranchised tens of thousands of Iowans. Under the status quo, only a few dozen convicted felons a year may regain the right to vote, if they can jump through Governor Branstad’s hoops. Justices Hecht and Appel wrote strongly-worded dissenting opinions in Griffin, but an “activist” opinion that changed nothing would be a weak pretext for an expensive statewide campaign.
Over the past month, Vander Plaats (once described by a friend as “obsessed with the gay-marriage issue”) hasn’t advocated removing the last three judges who brought marriage equality to our state seven years ago. Instead, he has been promoting calls for prayer and strengthening the church.
Meanwhile, the FAMiLY Leader no longer raises money off efforts to remove Iowa Supreme Court justices. Recent material on the group’s website and social media feeds suggest the Obama administration’s policy on transgender students’ access to school bathrooms has become the preferred peg for soliciting donations from like-minded Iowans.
As disappointed as I was by the majority opinion in Griffin, I draw comfort from knowing Cady, Hecht, and Appel won’t lose their jobs because of backlash over Varnum or any other opinion grounded in the law. Three new Branstad appointees could dramatically alter a high court where Cady is often the deciding vote between two blocs.
Nevertheless, it would be premature to conclude politicized retention elections are a thing of the past in Iowa. The events of 2010 will be long remembered in the legal community and may be on justices’ minds when the next potentially explosive case reaches the Supreme Court on appeal.
SEPTEMBER 6 UPDATE: A spokesperson for the National Organization for Marriage told the Des Moines Register’s Grant Rodgers the group is not planning any “campaigning or intervention” in this year’s retention vote. I posted more thoughts on the subject here.