In Iowa, Voters Oust Judges Over Marriage Issue

Published: November 3, 2010 - New York Times

DES MOINES — In a rebuke of the state supreme court with implications for judicial elections across the country, voters here removed three justices who participated in a ruling last year that made the state the first in the Midwest to permit same-sex marriage.

The close vote concluded an unusually aggressive ouster campaign in the typically sleepy state judicial retention elections that pitted concerns about judicial overreaching against concerns about judicial independence. Years of grumbling about “robed masters,” conservatives demonstrated their ability to target and remove judges who issue opinions they disagree with.

Each of the three judges received about 45-46 percent support with 91 percent of precincts reporting, according to The Associated Press, marking the first time members of Iowa’s high court had been rejected by voters. Under the system used here, judges face no opponents and simply need to win more yes votes than no votes to win another eight-year term.

Financed largely by out-of-state organizations opposed to gay marriage, those pushing against the judges were successful in turning the vote into a referendum on the divisive issue.

“I think it will send a message across the country that the power resides with the people,” Bob Vander Plaats, a Republican who led the campaign after losing the republican nomination for governor, told a crowd of cheering supporters at an election night party peppered with red signs declaring “No Activist Judges.” “It’s we the people, not we the courts.”

Though the Iowa election was the most prominent, similar ouster campaigns were launched in other states against state supreme court justices running unopposed in retention elections whose rulings on matters involving abortion, taxes, tort reform and health care had upset conservatives.

Together they marked the rapid politicization of judicial races that had been specifically designed to be free of intrigue. Over the last decade, just $2 million was spent on advertising in retention elections, less than 1 percent of total campaign spending on judicial elections in that period, according to data compiled in a recent report released in part by the Brennan Center for Justice at New York University Law School. More than $3 million was spent on retention election races this year, easily eclipsing the figure for the previous decade, according to the Brennan Center.

The defeat was a bitter disappointment to much of the legal community here, which rallied behind the three justices arguing that judicial standards require judges to follow their interpretation of the law and not their reading of public opinion. They had urged voters to consider issues like competence and temperament rather than a single issue when casting ballots.

The three justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — did not raise money to campaign and only toward the end of the election did they make public appearances to defend themselves.

“We wish to thank all of the Iowans who voted to retain us for another term,” the judges said in a statement. “Your support shows that many Iowans value fair and impartial courts. We also want to acknowledge and thank all the Iowans, from across the political spectrum and from different walks of life, who worked tirelessly over the past few months to defend Iowa’s high-caliber court system against an unprecedented attack by out-of-state special interest groups.

“Finally, we hope Iowans will continue to support Iowa’s merit selection system for appointing judges. This system helps ensure that judges base their decisions on the law and the Constitution and nothing else. Ultimately, however, the preservation of our state’s fair and impartial courts will require more than the integrity and fortitude of individual judges, it will require the steadfast support of the people.”

Though several groups formed to support their retention, they were significantly outspent by the organizations that bankrolled the ouster effort, including the National Organization for Marriage and the American Family Association.

“We’re concerned about the precedent this has set tonight and what it means for the influence of money and politics on the judicial system,” said Dan Moore, co-chair of Fair Courts for Us, which supported the judges.

The judicial races were perhaps the most hotly anticipated item on the ballot this year, a dramatic contrast from years past in which the election were so low profile that more than a third of those who cast ballots left the section blank. “That’s the main reason I came out,” said Michelle Kramer, 36, a college student from Des Moines. “People can do what they want to do, they can love who they want to love.”

Her friend and neighbor Cathy Hackett, 38, took the opposite view. “I voted no for every single one of them,” said Ms. Hackett, a customer sales representative who described herself as a conservative Christian. “I’m not anti-gay. I love everybody. But I believe that if two people are going to marry they should be a man and a woman.”

The outcome will have no affect on the ruling that triggered the campaign, a 7-to-0 decision that found that a law defining marriage as between a man and a woman represented unlawful discrimination under the state constitution.

But those who led the ouster campaign said they were more focused on highlighting to judges elsewhere, including those on the U.S. Supreme Court, the risks associated with leapfrogging public opinion on the issue of same-sex marriage. They noted same-sex marriage has been initially approved by supreme courts in four states and by legislators in only three.

Jeff Mullen, lead pastor at the Point of Grace Church, who helped organize religious leaders in opposition to the judges, said the vote should send a message to judges nationwide. “They weren’t supposed to legislate from the bench,” he said. “They did. They’re out of a job.”

Depending on the speed with which new candidates are nominated the replacement justices could be appointed either by Gov. Chet Culver, a democrat who lost reelection on Tuesday, or Terry Branstad, a republican who previously served as governor. Each appointed one of the departing justices to the Supreme Court and Mr. Branstad appointed Ms. Ternus to a lower court. Mr. Branstad has called for changing the selection system.