2012] FRAMING THE DEBATE 1747
On November 2, 2010, Chief Justice Marsha Ternus and Justices David
Baker and Michael Streit of the Iowa Supreme Court all lost their jobs.1
Iowans, for the first time since adopting a merit-selection and retention
system in 1962, opted not to return sitting supreme court justices to the
bench following a retention election.2 The election was preceded by an
unprecedented anti-retention campaign3 sparked by Varnum v. Brien, a 2009
decision that invalidated Iowa’s In Defense of Marriage (“DOMA”) statute
and effectively legalized same-sex marriage.4 Following the announcement
that Iowans had not retained Justices Ternus, Baker and Streit, voters,
judges, political actors, and citizens were left wondering: What does this
election result mean?5 Did voters turn anti-gay animus into “no” votes at the
ballot box? Did voters take issue with the justices’ legal reasoning or merely
the policy implications of the decision? Were the election results a warning
shot directed at judges across the country faced with controversial
decisions?6 Or were the results about something else entirely?
The answers to these questions matter—to judges, lawyers, political
actors, citizens, and everyone in between. Not only do judicial-retention
elections fall at the intersection of law, public policy, and politics,7 the
1. IOWA SEC’Y OF STATE’S OFFICE, OFFICIAL RESULTS REPORT 5, 10, 15 (2010), available at
2. Grant Schulte, Retention of Justices a Tossup, DES MOINES REG., Oct. 4, 2010, at 1A,
available at 2010 WLNR 19673438.
3. See id.
4. See Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). For a discussion of the Varnum
decision, see infra Part II.A.
5. Des Moines Register political columnist Kathie Obradovich forecasted this question
before the election in a column aptly titled, Retention Vote Means: You Name It. Obradovich wryly
noted that through election results, Iowa voters might be sending any of the following
(a) Don’t want same-sex marriage in Iowa.
(b) Are afraid of judicial activism.
(c) Don’t mind special-interest influence.
(d) Don’t like judges, period.
(e) Consider one or more of the justices incompetent or corrupt.
(f) Forgot to turn over the ballot.
(g) All of the above.
(h) None of the above.
Kathie Obradovich, Op-Ed., DES MOINES REG., Oct. 10, 2010, at 3OP, available at 2010 WLNR
20210411 (numbering style modified).
6. This argument appeared in law-related publications following the election. For an
example, see Mark Curriden, Judging the Judges: Landm ark Iowa Elections Send Tremor Through the
Judicial Retention System, A.B.A. J., Jan. 2011, at 56.
7. Several major legal scholars have begun to devote attention to this intersection in
recent years. See, e.g., Erwin Chemerinsky, Preserving an Independent Judiciary: The Need for
Contribution and Expenditure Limits in Judicial Elections, 74 CHI.-KENT L. REV. 133 (1998)
(discussing the relationship between the regulation of judicial conduct, judicial elections, and