Justice, Retained

Two years ago, amid the shellacking of congressional Democrats in the midterm elections, three Iowa Supreme Court justices—Marsha Ternus, David Baker, and Michael Streit—lost their seats after conservative activists launched a campaign against all the judges who joined the unanimous 2009 Varnum v. Brien, which legalized gay marriage in the state. Iowans shifted gears Tuesday, retaining David Wiggins, another of the Varnum judges that conservatives had sought to oust. Wiggins was the only judge up for a retention vote this go-around, which Supreme Court justices in the state face every eight years.

What changed? The liberal network of pro-judge groups that failed in 2010 learned from their mistakes. Two years ago, the campaign led by prominent conservative activist Bob Vander Plaats took progressives by surprise. Liberal voters paid little attention to the retention vote, believing that Vander Plaats posed no real challenge—after all, retention votes were on the backside of the ballot and had gone unnoticed by the majority of Iowans prior to the 2010 election. Once it became clear that Vander Plaats's campaign wasn't simply a vanity project and a network of national social conservative funders were pouring money into the race, a disjointed collection of local groups stepped in to defend the judges, though few of them ever believed the judges' retention could actually fail. In addition to misreading the passion among Iowa's social conservatives, the pro-judge groups made a fatal mistake: They chose to frame the retention vote as a referendum on the integrity of the courts rather than on the same-sex-marriage decision per se.

Donna Red Wing, the executive director of One Iowa, the state's main LGBT advocacy organization, thinks the defeat in 2010 served as a wakeup call for complacent liberals. "Iowans were horrified when they woke up the day after the elections in 2010 that three justices were just removed," Red Wing says. "There were a lot of people who voted their ticket and never flipped their ballot over."

Liberal groups corrected those blunders in 2012. "We embraced the court's decision," says Connie Ryan Terrell, chair of the board at Justice Not Politics, a group that campaigned on Wiggins' behalf. "Being further removed from the 2009 decision itself, we've moved down the road toward additional and growing support for marriage equality. Folks understand now that the decision was sound; the decision was constitutionally based." Her organization looked at the results from two years ago and realized they hadn't done enough to motivate the LGBT base and young voters who, in Ryan Terrell's words, "support marriage equality and think it's a nonissue."

Their success this time can't be attributed solely to new strategies, however. Demographics simply made Wiggins' retention easier than his former colleagues' elections. The 2010 midterm electorate was smaller, whiter, older, and more conservative than the electorate in 2012, which was more representative of the state's demographics. "A midterm electorate and a presidential electorate are very different," says Greg Baker, political director of The Family Leader, the group that led the effort against Wiggins and the three judges in 2010. "There's a lot more independents that vote in the presidential election, and it appears more of the independents were in favor of retaining Judge Wiggins." Baker also suggested that, because Iowa was declared a swing state, the onslaught of ads in the presidential election blocked his group from achieving the same outcome as in 2010. Commercial airtime was simply more expensive this year. "The amount of money you raise goes about a quarter as far," he says.

Social conservatives are not willing to concede that Wiggins's retention is a sign that Iowans favor equal marriage rights. "Marriage has yet to be on the ballot in Iowa," Baker says. "I don't think Iowans have been truly able to express how they feel on marriage." Baker pledged that The Family Leader would continue to push lawmakers to put same-sex marriage up for a direct vote. Social conservatives in the state have advocated for a constitutional amendment overturning Varnum since the 2009 decision.

But for the pro-Wiggins' side, these results should settle the issue. "Are we going to say publicly that the retention of the justice was a referendum on marriage? Sure, absolutely," says Red Wing. "It has always been about marriage. It has always been about Bob Vander Plaats wanting to punish the justices. We're in a pretty good place right now. Marriage is safe for the time being."

In practical terms, this week's election assured that Iowa will in all likelihood maintain marriage equality through at least 2018. Democrats held their majority in the state Senate and should continue to stymie Republican efforts to amend the state Constitution, which requires that a bill be passed in two separate legislative sessions before it appears on the ballot. Thanks to that time lag, even if Republicans win majorities in the state's legislature in the next election, a referendum wouldn't appear until 2018 at the earliest. By that time it would likely be too late for the social conservatives to win. Polls are shifting to favor marriage equality. A February Des Moines Register poll found that 56 percent of Iowans oppose an amendment to restrict marriage rights. With each passing year, more old people pass away, replaced by a younger, more LGBT-friendly set of voters who will favor marriage equality if current demographic trends hold.

Three more Varnum judges still need to go before the voters, but not until 2016—a lifetime in politics. "Looking ahead it would surprise me if we have to tackle this issue again in 2016," says Ryan Terrell. "But that's four years away, four years to move the needle on marriage equality in general."

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