Litigation

Iowa Ouster Vote: ?A Perfect Storm??

By Peter Hardin

Iowans’ vote to oust three state Supreme Court justices over a ruling that permitted same-sex marriage has stunned many defenders of an independent judiciary. But just how often are Supreme Court justices dumped in retention elections?

Not often at all, according to a Des Moines Register article that provides some intriguing context for the historic ouster vote of the three Iowa justices on Election Day.

According to some election watchers, the three were hit by a “perfect storm” of sorts. It combined popular anti-incumbent sentiment, a retention vote scheduled a little more than a year after a highly controversial ruling, and an $800,000 ouster campaign that outspent supporters of keeping the judges.

The Iowans were the ninth, 10th and 11th state supreme court justices to be ousted since the first retention ballot vote occurred in California  in 1936, according to the article, which asserted that voters give the boot to justices about once a decade in retention states.

Former Iowa Supreme Court Justice Mark McCormick said he did not think the vote would deliver a chilling message to other courts. He downplayed a hope that has been voiced repeatedly by social conservatives.

Justice McCormick was wearing judicial robes in 1986 when California voters unseated state Chief Justice Rose Bird and two colleagues, after foes campaigned over her opposing the death penalty. “We didn’t receive any message from that, except that judges have got to have courage,” Justice McCormick said.

But former Tennessee Justice Penny White, removed by voters in 1996 over a death penalty ruling, was wary of the Iowa outcome, where national conservative groups helped fund the ouster drive.

“Every time these groups win, they become empowered to go after courts in other states,” she explained. “I do think it has a ripple effect beyond Iowa.”

University of Iowa law professor Todd Pettys said gay marriage “is one of a pretty small number of very divisive, moral, hot-button issues.” He added, “The likelihood that there is another issue that will galvanize voters attention, I just think that’s unlikely to happen again. My fear is I’ll be proved wrong.”

Meanwhile a Des Moines Register commentary by Kathie Obradovich discussed the way judges are selected through a merit-based system in Iowa, and it was entitled, “Alter panel nominating judges.”

A Stateline article from The Pew Center on the States was headlined, “Judge fights in Iowa, Illinois signal new era for retention elections.” At Law.com, a commentary by Katherine Helm was entitled, “Appointed vs. Elected Justices: States’ High Courts Take a Hit.”

Full post as published by The Gavel on November 08, 2010 (boomark / email).