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.

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How Iowa could have lost three Supreme Court justices in 2016

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.

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Group polled Iowans on Supreme Court retention vote (updated)

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.

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Key funder confirms no plans to go after Iowa Supreme Court justices

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.

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Smooth sailing for Iowa Supreme Court justices up for retention in 2016

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.

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Why did Chief Justice Cady change his mind about felon voting rights?

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.”

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