DES MOINES — After the State Supreme Court here stunned the nation by making this the first state in the heartland to allow same-sex marriage, Iowa braced for its sleepy judicial elections to turn into referendums on gay marriage.
The three Supreme Court justices on the ballot this year are indeed the targets of a well-financed campaign to oust them. But the effort has less to do with undoing same-sex marriage — which will remain even if the judges do not — than sending a broader message far beyond this state’s borders: voters can remove judges whose opinions they dislike.
Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race.
In Kansas, anti-abortion activists are seeking to recall a justice. In Illinois, business interests are campaigning against the chief justice after a case that removed a cap on malpractice liability, prompting him to run a television ad that opens with the declaration, “I am not a politician.” And a conservative group called Clear the Bench Colorado is citing a host of decisions in seeking to oust the full slate of justices on the ballot there, urging voters, “Be a citizen, not a subject.”
The merit selection system, which is used to pick supreme court justices in 16 states, including Colorado, Iowa and Kansas, was established to reduce politics’ influence on the composition of the judiciary, in part by avoiding the expensive and bitter campaigns seen in states where two candidates compete. (For each vacant post in Iowa, a committee nominates three candidates, one of whom is named by the governor. Judges stand unopposed for retention after their first year and then every eight years.)
“The system was not designed so that people could reject one vote or one case,” said Rachel P. Caufield, a Drake University professor who studies judicial selection. “It was designed so that people could get rid of unfit judges. It was meant as an extreme measure.” She added, “The system has worked well — until now.”
Candidate spending for competitive state supreme court races nationwide increased to more than $200 million over the last decade — more than double the figure for the previous decade — but just $2 million of that was spent in states that used merit selection, according to a recently released report on spending in judicial elections.
Because of the contests being waged from Colorado to Illinois, the amount of money spent on retention elections this year is likely to approach or surpass the figure for the entire previous decade, said Adam Skaggs, a lawyer with the Brennan Center for Justice at the New York University Law School and one of the co-authors of the report. “These cases suggest that the same type of arms-race spending in other contested elections is now beginning to impact previously quiet judicial elections,” Mr. Skaggs said. “These retention elections were sort of the last frontier that was free from this highly political, very expensive campaigning in the judiciary.”
Not that organized campaigns to remove judges through retention elections are without precedent. In 1986, Rose E. Bird, the chief justice of the California Supreme Court, was voted out along with two other justices after a contentious campaign that focused on her opposition to the death penalty. The current chief justice in California, Ronald M. George, who wrote the opinion that briefly legalized same-sex marriage (and later the opinion that upheld the voter-approved ban, Proposition 8), would face a similar campaign but he decided to retire rather than stand for re-election.
In Iowa, the campaign has taken a national flavor with visiting Republican presidential hopefuls endorsing the removal effort and Sandra Day O’Connor, the former United States Supreme Court justice, urging the state to resist the national tug toward partisanship.
A half-century of judicial elections in Iowa could be cumulatively read either as a popular endorsement of a well-functioning judiciary or as a testament to voter apathy. Typically in Iowa, more than a third of people who go to the polls do not even cast votes in the judicial races. No sitting State Supreme Court justice has ever been defeated, and only four lower court judges were removed in nearly 50 years.
Conservatives and liberals believe that insulation from voters has allowed judges to rule independently of popular opinion. That belief is why national organizations have poured money into the ouster campaign in Iowa and why the effort is causing worry among advocates for same-sex marriage and for an independent judiciary. Same-sex marriage has been initially approved in four states by supreme courts and in three (and the District of Columbia) by legislatures.
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