Disclosure: I am a plaintiff in an open records lawsuit that is pending before the Iowa Supreme Court on interlocutory appeal. (The governor’s office appealed a lower court ruling against the state’s motion to dismiss our case.) That litigation has nothing to do with this post.

On the back side of Iowa’s general election ballot, voters have a chance to vote yes or no on allowing two Iowa Supreme Court justices, two Iowa Court of Appeals judges, and dozens of lower court judges to remain on the bench.

No organizations are campaigning or spending money against retaining Justices Dana Oxley and Matthew McDermott, whom Governor Kim Reynolds appointed in 2020.

Nevertheless, I expect the justices to receive a lower share of the retention vote than most of their predecessors. Shortly after the newest justices were part of a controversial ruling on abortion in June, the Iowa Poll by Selzer & Co for the Des Moines Register and Mediacom found a partisan split in attitudes toward the Iowa Supreme Court, with a significant share of Democrats and independents disapproving of the court’s work.

This post seeks to provide context on how the justices up for retention have approached Iowa Supreme Court decisions that may particularly interest Bleeding Heartland readers.

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.

Remember how awful you felt on November 9, 2016, as you started to grasp what we were up against following the most devastating Iowa election in decades?

Would you believe the results could have been even worse?

Imagine Governor Terry Branstad appointing three right-wingers to the Iowa Supreme Court. It could have happened if conservative groups had targeted Chief Justice Mark Cady, Justice Brent Appel, and Justice Daryl Hecht with the resources and fervor they had applied against three justices in 2010.

Leaders of the campaigns to oust Iowa Supreme Court justices in 2010 and 2012 have chosen not to engage in this year’s retention elections, which will decide whether the last three justices who participated in Iowa’s marriage equality ruling will stay on the bench.

However, the coalition formed to stop “extremists from hijacking Iowa’s courts” is taking no chances. Justice Not Politics commissioned a statewide poll last week to gauge voters’ attitudes toward Chief Justice Mark Cady and Justices Brent Appel and Daryl Hecht, as well as some issues related to controversial Iowa Supreme Court rulings.

The National Organization for Marriage does not plan any “campaigning or intervention” in this year’s retention elections for three Iowa Supreme Court justices, Grant Rodgers reported for the Des Moines Register on September 5. The group was the largest single funder of the two previous anti-retention campaigns, contributing more than $635,000 to help oust three justices in 2010 and more than $148,000 to the unsuccessful effort to remove Justice David Wiggins two years later.

The last three justices involved in Iowa’s 2009 marriage equality ruling will be on the ballot this November: Chief Justice Mark Cady, author of the Varnum v Brien decision, and Justices Brent Appel and Daryl Hecht. National Organization for Marriage spokesperson Joe Grabowski told Rodgers, “There’s nothing planned at this time,” adding that “We always keep our options open.”

Those options are fading fast, with early voting set to begin in Iowa on Thursday, September 29. The previous two anti-retention campaigns, led by social conservative activist Bob Vander Plaats, were well underway by the end of August 2010 and 2012. As Bleeding Heartland discussed here, Vander Plaats and his allies have not signaled any plan to go after the Iowa Supreme Court justices. It’s a remarkable admission of weakness on their part, but also a rational decision. Convincing voters to remove justices over same-sex marriage (now allowed in all 50 states) would be a tall order, especially in a presidential election year, which brings out hundreds of thousands more voters than a typical midterm election.

This year’s high-profile voting rights case could have provided fodder for an anti-retention campaign, but that scenario failed to materialize when Cady joined three other justices to uphold Iowa’s current broad lifetime ban on voting by most people convicted of felonies.

Rodgers discussed another possible peg for a campaign against Cady, Appel, and Hecht: all joined a 4-3 decision (authored by Appel), which held that “juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution.” You can read the majority opinion, concurring opinions, and dissents in Iowa v. Sweet here. The majority ruling drew heavily on a 2012 U.S. Supreme Court decision, which invalidated mandatory life without parole sentences for juveniles, and several 2013 Iowa Supreme Court cases related to juvenile sentencing. Cady, Appel, and Hecht were all part of the majority in those 2013 cases.

Rodgers spoke to Lyle Burnett and Josh Hauser, who have experienced the tragedy of losing a loved one to a teenage killer. Both oppose retaining the three justices on the ballot this November, but “So far, neither Hauser nor Burnett have been contacted by any group or political organization that could elevate their personal campaigns.” Two victims’ advocates quoted in the Register said they do not support ousting Cady, Appel, and Hecht over this issue. It’s worth noting that neither the Iowa Supreme Court’s 2013 ruling in State v Ragland nor this year’s decision in Sweet guaranteed the release of any convicted murderer. Parole boards will still have discretion to approve or deny parole, based on expert assessments of whether the prisoner has been rehabilitated or still poses a danger to society.

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.

I don’t usually write posts like this one.

Check that: I don’t think I’ve ever written a post like this one.

I’m making an exception because the question has been nagging at me since the Iowa Supreme Court announced its 4-3 decision in Griffin v Pate two weeks ago today, and because a number of people who share my interest in felon voting rights have asked for my opinion.

Only Chief Justice Mark Cady knows the answer, and we won’t hear his side of the story until he writes his memoirs or speaks to some interviewer in retirement.

So with no claim to telepathic powers and full awareness that my analysis may therefore be flawed, I will do my best to understand why the author of the 2014 opinion that inspired Kelli Jo Griffin’s lawsuit ultimately decided our state constitution “permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship.”

Iowa Secretary of State Paul Pate is a defendant in Kelli Jo Griffin’s lawsuit claiming Iowa violates her constitutional rights by disenfranchising all felons. The Iowa Supreme Court heard oral arguments in the case on March 30. Justices are expected to decide by the end of June whether to uphold the current system or declare that Iowa’s constitutional provision on “infamous crimes” should not apply to all felonies.

Defendants typically refrain from commenting on pending litigation, but during the past three weeks, Pate has carried out an extraordinary public effort to discredit the plaintiffs in the voting rights case. In his official capacity, he has addressed a large radio audience and authored an op-ed column run by many Iowa newspapers.

Pate amped up his attack on “the other side” in speeches at three of the four Iowa GOP district conventions on April 9. After misrepresenting the goals of Griffin’s allies and distorting how a ruling for the plaintiff could alter Iowa’s electorate, the secretary of state asked hundreds of Republican activists for their help in fighting against those consequences.

At a minimum, the secretary of state has used this lawsuit to boost his own standing. Even worse, his words could be aimed at intimidating the “unelected judges” who have yet to rule on the case. Regardless of Pate’s motives, his efforts to politicize a pending Supreme Court decision are disturbing.

Seven years have passed since the Iowa Supreme Court struck down our state’s Defense of Marriage Act. The Republican-controlled Iowa House failed to approve a constitutional amendment to overturn that court ruling more than three years ago. Fewer than a quarter of GOP state representatives were willing to co-sponsor the marriage amendment in 2015. Even if Iowa lawmakers tried to turn back the clock on marriage equality, the effort would be futile, since the U.S. Supreme Court ruled last year that all states must recognize marriages between same-sex couples.

Nevertheless, one Iowa House Republican won’t let this fight go. Today he seized on an unusual and futile way to register his discontent with the Iowa Supreme Court’s Varnum v Brien decision.

National Organization for Money graphic created by Rights Equal Rights and used with permission.

Donald Trump targeted Bob Vander Plaats on Twitter this week. He speculated that Ted Cruz, who landed Vander Plaats’ personal endorsement last month, may not know about past “dealings” by one of Iowa’s leading social conservatives. The billionaire called Vander Plaats a “bad guy” and a “phony,” claiming the FAMiLY Leader‘s front man had asked to stay in Trump hotels for free and tried to secure a $100,000 payment for himself after “begging” Trump to do an Iowa event. Jennifer Jacobs confirmed that Trump received a $100,000 fee for speaking to a real estate conference in West Des Moines last year, but Vander Plaats told the Des Moines Register “he was paid nothing” for introducing Trump to the head of the company that organized the event, and “no donation was made to the Family Leader.”

The spat reminded me of big news from the final two weeks of the 2012 Iowa caucus campaign, when Rick Santorum confirmed that Vander Plaats had asked for money to promote his endorsement.

Bob Vander Plaats announced at a press conference today that he will not run for governor as an independent but will lead a public campaign against retaining the three Iowa Supreme Court justices whose names are on the ballot this November. Vander Plaats didn’t say who will fund the campaign, but promised more details on his “grassroots” effort next week. James Lynch reported yesterday that the Republican Governors Association will fund Vander Plaats’ crusade, which RGA officials consider “a model to be duplicated in other states.”

It’s been obvious for weeks that Vander Plaats wasn’t planning an independent bid for governor. The only question was what kind of face-saving deal would be struck between the bitter Republican primary rivals. The rumor mill suggested Vander Plaats might endorse Branstad in exchange for a promised future job. Instead, we have a different truce: Vander Plaats formally stands true to his principles by not endorsing Branstad. In return, the RGA (Branstad’s largest campaign donor by far) will pay for Vander Plaats’ revenge mission against Iowa judges.

Branstad has avoided publicly urging Iowans to vote against retaining the Supreme Court justices, and he didn’t have the guts today to take a stand for or against unseating them over a political dispute. In a written statement, Branstad said, “This is an issue on which Bob has often spoke with great passion and I understand his desire to pursue this path.”

How different from the Branstad of May 2009, who said “I do respect the existence of the separation of powers” when asked whether he regretted appointing two of the current justices, including Mark Cady, author of the Varnum v Brien decision.

The old Branstad wasn’t planning to run for governor again. The new Branstad doesn’t mind exploiting resentment over same-sex marriage for his own political gain. If that ends the careers of three good judges while elevating demagogues who don’t understand judicial review, so be it. Branstad appointee and Chief Justice Marsha Ternus has said this year’s retention elections will test Iowans’ commitment to an impartial judiciary. Branstad won’t join the right side in this fight.

On the contrary, Branstad has endorsed changing Iowa’s highly-regarded merit-based system for selecting judges. He has an interest in creating vacancies he could fill if elected governor, and he would rather pander to the religious right than allow judicial selection commissions to keep doing the job they’ve been doing for almost four decades. Some Iowa Republicans have advocated bringing back judicial elections or extremely stupid new restrictions on judicial deliberations. Branstad should know better than to play with fire on this issue.

Iowa House and Senate Republicans are probably overjoyed by today’s news. Vander Plaats will be working to turn out social conservatives who might not be thrilled with the party’s nominee for governor. That has to help GOP candidates in some of the battleground legislative districts. On the other hand, moderates may be turned off by the campaign against the judges. A Des Moines Register poll of likely Iowa Republican primary voters taken in June by Selzer and Associates found that 35 percent of respondents said some Iowans had “overreacted” to the gay marriage issue. The same survey found that 45 percent of likely Republican primary voters were against voting to remove Supreme Court judges because of their decision on marriage.

I’m concerned about the retention elections, because the judges are unable to campaign on their own behalf. Those who support judicial independence, such as the State Bar Association, are unlikely to match spending against the judges by conservative groups and the Republican Governors Association. Fortunately, Governor Chet Culver made his position loud and clear today:

“I support Iowa’s Supreme Court justices and more importantly, I support our judicial nomination and appointment process as it stands today.

“Iowa is known for having the fairest judge selection system in the country. We oppose efforts to make choosing our judges more political, more ideological.

“Terry Branstad and his running mate Kim Reynolds have made it clear that they want to change our system. Branstad has gone so far as to highlight Reynolds’s support for changing the state’s constitution, allowing the governor to reject all nominees sent by the judicial nominating committee, requiring the committee to send names again and again until the governor finds an appointee that supports a certain political agenda.

“This campaign is about the future of our state and about choosing to move forward, instead of backwards. The best way to do that is not to focus on ideological battles but to bring Iowans together by investing in our future to create jobs, continue our national leadership in renewable energy and build 21st Century schools.”

John Deeth seems optimistic that the Vander Plaats crusade will fail. He makes a good point today:

Just for the record, here’s how the math usually works out on these things: the judges almost always win [retention] by an 80%-20% margin, with 40% or so of voters just skipping the contests entirely. I don’t see BVP swaying a typical independent voter. If he has any impact it’s on the margins, lowering that undervote percentage.

In [the] 1992 ERA vote, I learned a tough but basic lesson: Loudly reminding your people to vote Yes in an otherwise low-profile race simultaneously reminds the other side to vote No. The polarity is reversed here but BVP faces the same dilemma.

In 2004, activists on the religious right “mounted an unsuccessful campaign to oust Woodbury County District Court Judge Jeffrey Neary in 2004 based on Neary’s decision to grant a divorce to two lesbians who had entered into a civil union in Vermont.” Here’s hoping Vander Plaats fails too.

Share any relevant thoughts in this thread. Do you think Branstad can get by with weasel wording on the retention vote for the rest of the campaign? Or will he be forced later to come out explicitly for or against keeping Justices Ternus, Michael Streit and David Baker on the high court?

UPDATE: A statement from the American Judicature Society is after the jump. Iowa’s judiciary has been recognized as among the best in the country.

AUGUST 11 UPDATE: How cowardly is Terry Branstad?

“This is a ballot issue, and Gov. Branstad believes this is an issue on which people need to decide for themselves,” spokesman Tim Albrecht said today. “He respects the secret ballot and believes people should vote their conscience.”

Next week will mark the first anniversary of the Iowa Supreme Court’s ruling in Varnum v Brien. Seven justices unanimously concluded that the section of the Iowa Code enacted through our state’s Defense of Marriage Act violates the equal protection provision of the Iowa Constitution. Since the day that decision was announced, many Iowa Republicans have called for overturning the court’s ruling. Some have denied that county recorders were obliged to implement the ruling, or insisted that government officials may ignore a court’s opinion about the constitutionality of a law. Others have called on Iowans to vote against retaining justices who supposedly overreached their authority. For example, gubernatorial candidate Rod Roberts said last November,

“We need to send a message to the Iowa Supreme Court that they are accountable to the people of Iowa,” said Roberts, who has made restoring the role of the people in state government a centerpiece of his campaign. “The problem with judicial activism is that it thwarts the will of the legislature and of the people of Iowa.”

Now that Congress has approved a health insurance reform bill Republicans don’t like, some GOP politicians have decided judicial activism isn’t so bad after all. Gubernatorial candidate Bob Vander Plaats pledged to “invoke the Constitution’s 10th Amendment to protect Iowans from new federal mandates” on health care. Rod Roberts followed Vander Plaats’ lead:

Roberts said that if the federal government passes a nationalized health care plan that conflicts with the Roberts Amendment, as governor he will file a lawsuit in federal court against President Obama to have the plan struck down as a violation of Iowans’ Tenth Amendment rights. The Tenth Amendment to the U.S. Constitution provides that powers not delegated to the federal government (such as the regulation of health insurance) are reserved for the states.

Gubernatorial candidate Terry Branstad also supported the idea of using the courts to nullify the will of Congress: “Given the massive scope and effect of this [health insurance reform] bill, it is likely that various provisions will be challenged in the courts. Those challenges are both timely and appropriate.”

Any constitutional lawyer can tell you that the U.S. Supreme Court has long affirmed the power of Congress to regulate interstate commerce. Law professor Mark Hall explains in detail here why constitutional arguments against an individual mandate to purchase health insurance are wrong. As for the broader 10th amendment claim that the constitution doesn’t empower the federal government to regulate health insurance, Hall notes, “Congress has ample power and precedent through the Constitution’s ‘Commerce Clause’ to regulate just about any aspect of the national economy.”

Conservative legal scholar Eugene Volokh likewise does not find the constitutional arguments against health insurance reform convincing:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

The U.S. Supreme Court could overrule the will of Congress on health insurance reform only by reversing several decades of precedent about the definition of commerce. That’s textbook “judicial activism,” but it’s ok with some Iowa Republicans if it achieves the political end they are seeking.

By the way, Vander Plaats claims that as governor, he could issue an executive order halting same-sex marriages in Iowa. I wonder if he also thinks President Barack Obama could issue an executive order overturning a possible Supreme Court ruling against health insurance reform.

UPDATE: Kevin Drum considers prospects for a lawsuit challenging the individual mandate to buy health insurance. He makes the same point about Congressional authority to regulate interstate commerce and adds,

What’s more, the penalties for not buying insurance are tax penalties, and if anything, Congress has even wider scope in the tax area than in the commerce area. The Supreme Court has frequently ruled that Congress can pass tax laws that essentially force people to do things that Congress doesn’t have the direct power to require.

[…]here’s the thing: if the Supreme Court decided to overturn decades of precedent and strike down the mandate even though Kevin Drum says they shouldn’t (hard to imagine, I know), the insurance industry will go ballistic. If they’re required to cover all comers, even those with expensive pre-existing conditions, then they have to have a mandate in order to get all the healthy people into the insurance pool too. So they would argue very persuasively that unless Congress figures out a fix, they’ll drive private insurers out of business in short order. And that, in turn, will almost certainly be enough incentive for both Democrats and Republicans to find a way to enforce a mandate by other means. If necessary, there are ways to rewrite the rules so that people aren’t literally required to get insurance, but are incentivized so strongly that nearly everyone will do it. As an example, Congress might pass a law making state Medicaid funding dependent on states passing laws requiring residents to buy insurance. Dependent funding is something Congress does routinely, and states don’t have any constitutional issues when it comes to requiring residents to buy insurance. They all do it with auto insurance and Massachusetts does it with health insurance.

Like Drum, I view these proposed legal challenges as Republican posturing rather than a serious threat to nullify the law Obama signed this morning.

Shortly after the Iowa Supreme Court unanimously cleared the way for same-sex marriage rights in April 2009, prominent social conservatives in Iowa vowed to vote out three Supreme Court justices who face retention elections in November 2010. Those are Chief Justice Marsha Ternus and Justices Michael Streit and David Baker.

Judges do not campaign actively for retention, but today Ternus commented on the upcoming elections during an Iowa Public Radio appearance. (continues after the jump)

I expected 2009 to be a relatively quiet year in Iowa politics, but was I ever wrong.

The governor’s race heated up, state revenues melted down, key bills lived and died during the legislative session, and the Iowa Supreme Court’s unanimous ruling in Varnum v Brien became one of this state’s major events of the decade.

After the jump I’ve posted links to Bleeding Heartland’s coverage of Iowa politics from January through June 2009. Any comments about the year that passed are welcome in this thread.

Although I wrote a lot of posts last year, there were many important stories I didn’t manage to cover. I recommend reading Iowa Independent’s compilation of “Iowa’s most overlooked and under reported stories of 2009,” as well as that blog’s review of “stories that will continue to impact Iowa in 2010.”

A few thoughts came to mind when I read about the U.S. Supreme Court’s ruling in Caperton v. Massey this week. The case involved a West Virginia Supreme Court judge who refused to recuse himself from a trial, even though the chief executive of one of the litigants had spent $3 million to help the judge get elected. In a 5-4 ruling, the Supreme Court found that due process requires a judge to recuse himself if large campaign contributions create the appearance of partiality.

Like Scarecrow at the Oxdown Gazette, I found the hackery of Chief Justice John Roberts’ dissenting opinion revealing.

Mostly I was shocked to learn from this New York Times article that judges are still elected in 39 states. It’s bad enough that money corrupts our elections for the legislative and executive branches. Judicial elections create opportunities for “legalized bribery” as well as incentives for judges to let public opinion unduly shape their interpretation of the law in high-profile cases.  

I agree with the Des Moines Register’s editorial board:

The fact that it is difficult, if not impossible, to draw an ethical distinction between a bribe and a campaign contribution is a strong argument for why judges should not be elected. Period.

Iowa voters did away with judicial elections by approving an amendment to the state constitution in 1962. The governor appoints judges at all levels. The public has input through nominating commissions that evaluate potential appointees before forwarding a short list to the governor. In addition, judges can be removed either by the Iowa Supreme Court for disability or good cause, or by the voters through periodic retention elections.

We are fortunate that Iowans recognized the wisdom of scrapping judicial elections when the constitutional amendment was on the ballot. This page on the website of the American Judicature Society lists failed judicial reform efforts in numerous other states. As you can see, state legislators and voters have rejected similar proposals despite years of hard work by reform advocates.

Let this be a lesson for policy-makers at all levels to seize the chance to make big changes for the better, such as the currently favorable environment for health care reform. Opportunities to ditch deeply flawed but entrenched systems don’t come around every year, every election cycle or even every decade.