Judicial retention election news and discussion thread

The Des Moines Register's latest Iowa poll indicates a close contest for Iowa Supreme Court Justice David Wiggins, the target of an anti-retention campaign by social conservatives. In an unexpected move, former Iowa House Speaker Chris Rants publicly advocated a yes vote on Wiggins, despite Rants' opposition to same-sex marriage rights.

In related news, yesterday marked the end of the road for conservative activists trying to challenge Iowa's 50-year-old system for nominating judges.

Follow me after the jump for details.

Selzer and Co surveyed 650 likely Iowa voters between September 23 and 26. Jeff Eckhoff summarized the findings on the retention elections for the Des Moines Register's October 1 edition.

Forty-nine percent of likely voters want to retain Wiggins, who participated in the court's landmark 2009 ruling that legalized same-sex marriage in Iowa. Forty-one percent say they'll vote to remove him from office. Nine percent aren't sure how they'll vote, and 1 percent intend to skip voting on the question.

Two years ago, a heated campaign saw Iowa voters oust three justices who also joined in the unanimous decision. A mid-September poll in 2010 yielded a tighter result: 31 percent of voters favored retention for all three, 12 percent favored retention for one or two, and 29 percent favored removal. [...]

Bob Vander Plaats, head of Iowans For Freedom, the group leading the "No Wiggins" campaign, said organizers "knew it was going to be an uphill battle from the start, but it was an uphill battle two years ago."

"If he's under a majority, I think that is a good sign for us," Vander Plaats said, noting that retention opponents spent much of their time in 2010 educating voters on how a retention election works. "I really believe we're in better shape than we were two years ago."

For his part, Wiggins issued a one-sentence statement Friday saying he believes Iowa's electorate has shifted since the 2009 Varnum vs. Brien ruling.

"In my conversations with people around the state, I get the sense that Iowans are getting more comfortable with the present state of the law," Wiggins said.

The Register's poll indicated that 34 percent of respondents approve of how Wiggins handles his job, 23 percent disapprove, and 43 percent were unsure.

A Iowa poll conducted by Greenberg Quinlan Rosner Research in August found that found 47 percent of respondents favor retaining the four Iowa Supreme Court justices who will be on the ballot this November (Wiggins and three justices Governor Terry Branstad appointed in 2011). Another 24 percent favor ousting the justices and 25 percent said they were not sure.

One surprising "Yes on Wiggins" voter made his plans public on Sunday. Since retiring from the Iowa House, Chris Rants has been writing a regular opinion column for the Sioux City Journal. I recommend reading his whole piece from the September 30 edition. He describes meeting with Chuck Hurley, then president of the Iowa Family Policy Center, when Rants was speaker of the House.

Hurley was in my office to convince me that Iowa's Defense of Marriage Act needed to be put in the state Constitution. Being in state code wasn't good enough. Based on rulings in other states it was likely to be overturned. The only way to protect one-man-and-one-woman marriage was to put it in the Constitution. [...]

Flash forward to today. The FAMiLY Leader, out on their bus tour, would have us believe that our Supreme Court hijacked the Constitution, usurping the roles of chief executive and Legislature. Justice Wiggins must go or the republic will fail.

That is not true. That is why I will vote YES to retain Justice Wiggins.

I didn't like the decision, but I wasn't surprised by it. Nor do I think the judges hatched some nefarious plot of judicial activism. [...]

I share this story because those who want to toss Justice Wiggins are the same ones who came to me knowing the law wouldn't stand up to constitutional scrutiny. Why else put it in the Constitution? Every lawyer I talked to in advance of the ruling who read the briefs submitted to the court told me the law was going to be tossed.

In short, the court did what we expected. Today's outrage rings hollow. [...]

Two years earlier Iowa's flag desecration law was struck down as violating the due process clause of the U.S. Constitution. No one screamed "judicial activism." There were no bus tours. The law was flawed. We knew it. So the Legislature wrote a new law to pass constitutional muster and still protect the flag. The system worked. The Legislature chose not to respond to the court ruling on gay marriage in a similar way. Who is to blame for that? We are. Not Justice Wiggins.

I don't see how anyone can challenge Rants' bona fides on this issue. As Iowa House speaker, he got a constitutional amendment banning same-sex marriage passed in his chamber. When Democrats held an Iowa House majority, Ranks repeatedly tried to force a floor vote on that constitutional amendment--both before and after the Iowa Supreme Court's ruling on marriage equality.

By the way, Rants also mentioned that Wiggins was part of the Iowa Supreme Court majority that ruled in favor of state legislators in the Rants v Vilsack case. Governor Tom Vilsack had appointed Wiggins.

I would make one minor correction to Rants' opinion piece: he states that "most of the judges were appointees from Gov. Branstad's first four terms." At the time of the Varnum v Brien decision, the Iowa Supreme Court was made up of two Branstad appointees (Marsha Ternus and Mark Cady), four Vilsack appointees (Wiggins, Michael Streit, Daryl Hecht, and Brent Appel), and one Chet Culver appointee (David Baker).

Following the successful campaign against retaining Ternus, Streit, and Baker in 2010, some Iowa conservatives sought to change the state's system for selecting Supreme Court justices. This page on the Iowa Judicial Branch website explains how the process has worked since Iowans approved an amendment to the state constitution in 1962.

State legislators' attempts to change the process never got off the ground during the 2011 legislative session. The only hope for opponents of the merit selection system was a federal lawsuit filed in December 2010, spearheaded by Indiana attorney Jim Bopp of the James Madison Center for Free Speech. The lawsuit claimed that the nominating system discriminates against Iowa citizens who are not attorneys, because members of the Iowa State Bar Association are able to choose seven of the fifteen State Judicial Nominating Commission members.

A federal district court judge granted Iowa Attorney General Tom Miller's motion to dismiss that lawsuit in January 2011. A panel of the U.S. Court of Appeals for the Eighth Circuit affirmed that ruling in April of this year. Bleeding Heartland posted excerpts from the district court and appeals court rulings here. Or, click these links to read the full district court and appeals court decisions (both are pdf files).

Yesterday the U.S. Supreme Court declined to hear an legal challenge to Iowa's judicial selection system. No further appeals are possible. Conservative-backed federal lawsuits challenging merit selection systems in other states have also failed.

As the second most senior justice on the Iowa Supreme Court, Wiggins chairs the State Judicial Nominating Commission. He will continue in that role if Iowans vote to retain him in November. If Wiggins loses the retention vote, the next chair of the judicial nominating commission would be Justice Daryl Hecht.

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