Judicial retention vote spikes controversy

Sarah Haas

In a historic vote, Iowans removed three Supreme Court justices in response to their decision that said the ban on same-sex marriages was unconstitutional. The retention vote has not ousted a Supreme Court justice since its inception in 1962.

Chief Justice Marsha Ternus, Justices David Baker and Michael Streit were removed.

“It has never happened before in Iowa,” said Steffen Schmidt, professor of political science. “It’s very rare anywhere around the country where retention votes come up, and so that alone makes it a national story.”

Schmidt said voters usually do not vote to remove a justice unless he or she is incompetent or corrupt.

“But what does it mean to be incompetent? In this case I think it means the justices didn’t abide by the moral and ethical positions of a lot of Iowans,” Schmidt said. “So once you have a system of judicial retention, you have to expect that one day the voters are going to vote out the judges.”

Bob Vander Plaats, Sioux City businessman and politician, organized a movement to remove the judges through the group Iowa for Freedom. The group said the justices’ vote in the decision allowing same-sex marriage was an affront to Iowans who disagree with the court’s decision, and do not think gay Iowans should be granted the right to marry.

The group gained momentum in recent months with steady streams of monetary support that allowed opponents of the retention vote to spend money in order to educate voters. Vander Plaats said his educational campaign paid off and that he was very encouraged by the results of Tuesday’s vote. He said he hopes to use the momentum to encourage legislators, the governor and the judiciary to uphold the values of Iowan voters.

“I think Iowans researched the issue and cast an informed ballot,” Vander Plaats said. “They stood up for freedom by voting no and removing three activist judges.”

He said voters showed an enormous amount of common sense because only three justices out of the 74 judges on ballots statewide were not retained.

Alex Tuckness, associate professor of political science, said the vote indicated a discrepancy in how Iowan’s want to handle the division between law and politics.

“Who will decide particular legal questions is a political question, and so the vote yesterday was about two competing visions of who should be making decisions on an issue like gay marriage,” Tuckness said. “One view is that it’s a question of rights that should be decided in the courts and the other is that it’s a question of rights that should be decided in the legislature.”

He said the vote indicates significant disagreement among Iowans whether the Supreme Court overstepped its bounds by deciding on the constitutionality of a ban on same-sex marriage rather than allowing the legislature to provide a solution.

Schmidt said the vote has large cultural and political implications. This vote sets a precedent for future judicial retention votes, which may also include justices whose decisions are unpopular.

“It’s very complicated because there are no rules that you can’t challenge judges whose rulings you disagree with,” Schmidt said. “I think we’re going to see a different environment in Iowa regarding the judiciary and judges. This has probably changed the whole way the judiciary operates.”

He said he expects to see more efforts to remove judges who make unpopular decisions, which will encourage more justices to campaign for support for retention votes.

“I think you’ll see justices looking for some sort of financial support so that if they are involved in a controversial case, they can have some protection,” Schmidt said.

In states like California, judges run for election just like a legislator. This practice has drawn criticism by many who believe the judiciary is not free from influence from politics and corporate interests when the judges have to run for office and solicit campaign contributions.

Yet Vander Plaats maintains Tuesday’s vote will only serve as a message to other members of the judicial branch.

“It’s going to encourage judges to stay within their constitutional boundaries,” Vander Plaats said. “If they follow the constitution, then there is not reason to worry. People will show them that they’re willing to hold activist judges accountable.”

Sophie Prell, senior in journalism and communication and public relations chairwoman of LGBTAA, said the decision is not disheartening because more than a half a million people voted in order to show their disapproval of gay marriage. Instead she is concerned about the long-term implications for the Iowa judicial system.

She said it will be difficult to return to the merit system where judges are appointed and then retained without much campaigning.

“Now it’s going to be more likely to see judges campaigning for office like a senator does,” Prell said. “The whole justification was that they want politics out of our courts, but now you’re going to have both sides battling it out. You’ll have campaign financing and lobbying and those judges who survive retention votes will owe people favors and you’re not going to have nearly the unbiased court system.”