Retention redux: Iowa 2012.

• Author: Pettys, Todd E.
• Position: Statutory ban on same-sex marriage

1. INTRODUCTION

   On April 3, 2009, the Iowa Supreme Court's seven members ruled unanimously in Varnum v. Brien (1) that the state's statutory ban on same-sex marriage violated the equality clause of the Iowa Constitution. Nineteen months later, three of those justices--Chief Justice Marsha Temus, Justice Michael Streit, and Justice David Baker--lost their jobs when Iowa voters denied their bids for retention. (2) It was a remarkable victory for social conservatives and their leaders, including Iowa for Freedom (an anti-retention organization founded by Iowa businessman Bob Vander Plaats, who had recently suffered (3) his third defeat in a Republican gubernatorial primary), the Mississippi-based American Family Association, and the New Jersey-based National Organization for Marriage, among others. (4) It was a staggering defeat for the three ousted justices and for those who believed it was inappropriate to use the retention election as an opportunity to express disapproval of Varnum.

   Things played out differently when a fourth member of the Varnum court--Justice David Wiggins--stood for retention in November 2012. Fifty-five percent of those casting ballots voted to retain Justice Wiggins, roughly the same percentage that voted to remove his three former colleagues two years earlier. (5) What accounts for that difference in the Varnum justices' political fortunes? I offer answers to that question here.

2. THE 2010 BATTLE AND ITS AFTERMATH

   In 2010, Chief Justice Ternus, Justice Streit, and Justice Baker faced daunting obstacles in their bids to keep their seats on the Iowa Supreme Court. (6) Conservatives nationally were energized by the opportunity to make their voices heard in the first midterm elections of the Obama Administration, conservatives in Iowa were doubly energized by the opportunity to remove a politically vulnerable Democratic governor from office, and social conservatives in Iowa were triply energized by the opportunity to express their disapproval of the Iowa Supreme Court's role in legalizing same-sex marriage. Out-of-state organizations poured a substantial amount of money into the campaign against the three targeted justices, far outstripping the sum spent on those justices' behalf. (7) In their television advertisements and elsewhere, the leaders of the anti-retention campaign accused the justices of being elitist judicial "activists," whose "radical" ruling in Varnum portended a judicial threat to a host of valued freedoms. (8) National politicians echoed those themes in an effort to advance their own political aspirations. When campaigning in Iowa for the Republican presidential nomination, for example, Newt Gingrich urged Iowans to vote against the justices' retention in order to send the nation a signal that a "'citizen revolt'" was underway against "'dictatorial'" judges. (9)

   The two entities leading the charge on the pro-retention side (Justice Not Politics and Iowans for Fair and Impartial Courts) were poorly funded by comparison and, as 501(c) organizations, were barred by federal law from squarely taking a public position on whether Iowans should vote for or against the justices' retention. (10) Rather than speak directly to the three justices' merits, these two organizations tried to persuade voters that it would be dangerous to inject politics into the selection and retention of Iowa's justices. (11) A better-funded 527 organization (Fair Courts for Us) arrived on the scene just three weeks before Election Day, likely too late to make much of a difference. (12) The Iowa State Bar Association similarly did not enter the fray until the final month, having felt obliged to hold off until the association's members were given a formal opportunity in late September to express their views about all of the judges and justices standing for retention that November. (13) Apart from a small number of appearances by Chief Justice Ternus in the days just prior to the election, the three justices themselves refused to campaign or speak publicly in their own defense. (14) Those who did campaign on the three justices' behalf said little about the Varnum ruling itself, and even conceded in a radio advertisement that the justices were akin to good referees who had made one bad call. (15)

   Given all of those dynamics, one perhaps should not have been surprised when a majority of Iowans casting ballots on the retention issue voted to remove the three justices from office. Probably the best reason for surprise was the ouster's historical novelty. Between 1962 (when Iowa shifted to a merit-selection and retention system) and 2010, no Iowa Supreme Court justice had ever failed to survive a retention vote. (16) In the nearly seventy-five years since California became the first state to hold a judicial retention election, voters in judicial-retention elections nationwide had removed only eight other state supreme-court justices from office. (17)

   In the weeks following the 2010 election, some of the three justices' opponents tried unsuccessfully to broaden the scope of their victory. With his national political stock soaring as a result of the role he played in the anti-retention campaign, (18) Bob Vander Plaats urged the four remaining Varnum justices to resign, arguing that if their names had appeared on the 2010 ballot, voters would have removed them from office, too. (19) The justices did not oblige him.

   In April 2011, five members of the Republican-controlled Iowa House of Representatives filed impeachment resolutions against the four remaining Varnum justices, arguing that they had violated their oaths by "'unconstitutionally exercising functions properly belonging to the legislative and executive departments.'" (20) But the impeachment effort was doomed even before it began. Under the Iowa Constitution, Supreme Court justices are subject "to impeachment for any misdemeanor or malfeasance in office." (21) When the impeachment possibility rumbled through the state shortly after the 2010 elections concluded, (22) Republican Governor-elect Terry Branstad declared that, while he disagreed with the Varnum ruling, he did not believe the justices had committed "malfeasance." (23) Republican House Speaker Kraig Paulsen and House Majority Leader Linda Upmeyer similarly made it clear that they opposed impeachment. (24) For their part, House Democrats threatened to bring the chamber's activities to a halt if the impeachment resolutions ever reached the House floor. (25) Rich Anderson, the Republican chair of the House Judiciary Committee (through which the impeachment resolutions would have to travel), also opposed impeachment and predicted that any effort to pursue that extraordinary remedy would die in his committee. (26) His prediction proved accurate. (27)

   Republicans rallied more cohesively around the possibility of amending the Iowa Constitution to ban same-sex marriage. (28) The amendment process in Iowa is arduous, however, and so opponents of same-sex marriage lacked a quick route to victory. The state constitution gives voters an opportunity every ten years to decide whether to hold a constitutional convention, (29) but no one in 2010 mounted a serious pro-convention campaign. Voters declined the convention invitation by a two-to-one margin. (30) The only other way to amend the constitution involves a series of three steps over a period of years: A proposal to amend the constitution must first win the approval of a majority in the state legislature; after an intervening general election, the proposal must again win the backing of a majority in the state legislature; and the proposed amendment must then be submitted to the citizenry for final approval. (31)

   Iowans seeking a constitutional ban on same-sex marriage have never made it past the first step. During his 2010 campaign, Governor-elect Branstad--who signed the now-invalid statutory ban on same-sex marriage into law during an earlier stint as governor--vowed to push the legislature to propose an amendment banning same-sex marriage and thereby give citizens a chance to vote on the issue. (32) He renewed that call a day after voters returned him to the governorship. (33) Pushing back just as forcefully, however, was Senate Majority Leader Michael Gronstal, a Democrat. Gronstal's party narrowly retained control of the Iowa Senate in 2010, (34) giving Gronstal the ability to decide which measures would come before the full Senate for a vote. Gronstal had blocked debate on the amendment proposal in 2009, and he vowed to block debate on the measure again when the legislature reconvened in 2011. (35) In January 2011, the House Judiciary Committee voted to approve the amendment (36) and the full House added its approval the following month. (37) But Gronstal held true to his vow and the proposed amendment did not proceed any further during that legislative session. (38) Opponents of same-sex marriage targeted Gronstal for removal in the 2012 elections, (39) but Gronstal prevailed and Democrats retained control of the Senate. (40) Gronstal promptly reiterated his refusal to allow an amendment banning same-sex marriage to reach the Senate floor, (41) and that is where the proposed amendment remains blocked at the time of this writing. (42)

   Before turning to the 2012 battle over Justice David Wiggins's retention, one other facet of the 2010 election's aftermath merits mention--a facet involving Justice Wiggins himself. Under Iowa's merit-selection system, the governor must select new justices from a slate of nominees provided by the state's judicial nominating commission ("the Commission"). (43) The Iowa Constitution states that the Commission must be chaired by "[t]he judge of the supreme court who is senior in length of service on said court, other than the chief justice." (44) By law, therefore, the Commission was to be chaired by Justice Wiggins.

   The Commission did its work in early 2011 under unusual scrutiny. On the political front...