Lessons of 2018: One result provides snapshot of racism in Iowa

Second in a series interpreting the results of Iowa’s 2018 state and federal elections.

“If only there was some explanation for why Judge [Anuradha] Vaitheswaran, who was the highest rated judge on the court of appeals, did 6% worse than her colleagues in the retention election,” Josh Hughes commented sarcastically on Twitter yesterday.

Indeed, the voting on state judges up for retention in 2018 provided a snapshot of racism in Iowa.

Under Iowa’s merit-based selection system, citizens do not elect judges but periodically have an opportunity to vote on whether the judge should continue on the bench. Judicial retention elections have mostly been low-profile affairs, with no judges no higher court judges removed through that process until social conservatives targeted three Iowa Supreme Court justices in 2010. (CORRECTION: Iowans had voted out four district or district associate judges since 1962.)

No Supreme Court justices were up for retention this year. Three judges on the Iowa Court of Appeals appeared on ballots statewide, and 64 who preside in lower courts were on ballots in the counties where they work. As in 2016, no interest groups funded a campaign against retaining any Iowa judges.

Unofficial results (final numbers will change slightly as late-arriving absentee ballots and provisionals are counted):

Iowa Court of Appeals 2018 retention election results
Michael Mullins Mary Tabor Anuradha Vaitheswaran
yes votes 702,030 714,163 646,895
no votes 230,826 224,122 277,130
yes percent 75.3 76.1 70.0

Yes votes between 70 and 80 percent are in line with typical results for statewide retention elections that haven’t been politicized. Most voters who take the time to fill out the back of their ballots support retaining all of the judges. A certain percentage routinely vote against every judge for a variety of reasons.

The significantly lower vote for retaining Vaitheswaran was unusual for an Iowa election. She received at least 67,000 fewer votes of confidence than Tabor and some 55,000 fewer than Mullins.

Two years ago, there was very little divergence in the results for three Iowa Supreme Court justices up for retention. Daryl Hecht, Brent Appel, and Mark Cady received 64.1 percent, 64.4 percent, and 65.3 percent yes votes, respectively.

Unlike Supreme Court Justice David Wiggins, who did far worse than his colleagues in the 2012 retention elections, Vaitheswaran faced no organized effort to oust her.

Sexism isn’t the culprit here; Tabor received the highest number and highest percentage of yes votes.

Is it possible lots of voters researched the options and made an informed decision to reject Vaitheswaran? Not really. Probably fewer than 1 percent of Iowans could name any judge on the Court of Appeals, and an even tinier fraction are familiar with any opinions or dissents Vaitheswaran has authored. The Iowa Supreme Court resolves the highest-profile legal disputes. Appeals court decisions rarely make news.

The Iowa Judicial Branch published short biographies of all judges up for retention this year, but that document does not review their decisions or comment on the quality of their work. You couldn’t read those and conclude Vaitheswaran was unqualified. On the contrary, she is the most experienced of the three appeals court judges on the ballot, having served on Iowa’s second-highest court since 1999. Michael Mullins was appointed to his current position in 2011 and Mary Tabor in 2010.

The only publicly-available evaluation of judges was the Iowa Bar Association’s Judicial Performance Review. That group publishes similar ratings every election year. Only attorneys with firsthand courtroom experience are surveyed.

In order for attorneys to be eligible to rate a judge or justice, attorneys must have appeared before him or her frequently. Attorneys rate the judges on eight (six for appellate court justices and judges) questions related to their professional competence; i.e., knowledge and application of the law, perception of factual issues, attentiveness to arguments and testimony, management and control of the courtroom, and promptness of rulings and decisions. The ratings range from 1-5 with 5 being “excellent” and 1 being “very poor.”

Attorneys also rated judges on four questions related to their demeanor; i.e., avoids undue personal observations or criticisms of litigants, judges, and lawyers from the bench or in written orders; decides cases on the basis of applicable law and fact, not affected by outside influence; is courteous and patient with litigants, lawyers, and court personnel; and treats people equally regardless of race, gender, age, national origin, religion, sexual orientation, socio-economic status, or disability. The ratings on these questions also range from 1 to 5, with 5 being “strongly agree” and 1 being “strongly disagree.

The bar association’s report indicated all 67 judges on Iowa ballots “are qualified to remain,” but the scores varied widely. Many judges were recommended for retention by 90 percent or more of the attorneys. A few received noticeably lower marks, in the 50s or 60s.

Vaitheswaran got extremely high ratings from the 204 respondents who filled out her survey, for a composite score of 96.67. Mullins and Tabor scored highly too (93.33 and 92.30). The point is, no one who took the time to search for background on the judges would find any reason to vote against Vaitheswaran but for Mullins and Tabor.

The obvious takeaway: tens of thousands of Iowans who knew nothing about these judges voted against the person with an Asian name and for the ones with Anglo names. They represent between 5 and 6 percent of citizens who are politically engaged enough to vote in a midterm election and fill out the whole ballot.

Disappointing, but not surprising.

UPDATE: A reader notes that a Facebook community for animal rights activists urged Iowans to vote against retaining Vaitheswaran and yes on Tabor because of “the Pinky case,” involving pet owners who challenged the city of Des Moines’ dangerous animals ordinance. That post was shared 71 times, including on the page of the large Save Pinky’s Life Facebook community. I doubt it had the reach to influence 50,000 or 60,000 Iowa voters, but it’s worth mentioning.

Top image: Chamber of the Iowa Court of Appeals, posted on the Iowa Judicial Branch website.

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  • Yep.

    This was one that I noticed, too, and hadn’t had time to compare to the ISBA survey yet; thanks for doing the leg-work. It sure looks like a fact pattern that defies any other explanation, and suggests a “-5% ‘otherness’ penalty” in statewide elections.

  • Angry

    This makes me very sad and a bit angry. In a former life as director of a small non profit, I knew Anu as one of our volunteers. She mentored a group of young girls who were involved in our organization. Anu is an exceptional person and info I received from a friend, a former clerk with the Court of Appeals, confirmed she is fine jurist as well. This is appalling.

  • Vaitheswaran

    I did not have a good experience with this judge and it was difficult for me to vote for her. Maybe another judge would have been just as bad, but my experience with her was awful.

  • ugh

    was hoping to see how we did against mitchell turner, but find this discussion most disheartening!!! on third thought, we shouldn’t be able to vote in judges anyway….but turner really should be on a long vacation!

    • I think our system works well

      I generally oppose electing judges. When Iowa enacted the merit-based system in 1962 (replacing judicial elections), periodic retention were part of a compromise so that the people would still have power to remove a bad judge. That power should be used sparingly so that judges don’t feel political pressure to decide cases a certain way.