Iowa Republicans aren't ready to cast aside their anger over the state Supreme Court’s 2009 decision legalizing same-sex marriage. After successfully unseating three of the justices who joined the unanimous decision in 2010, they’re going after Justice David Wiggins, who is up for a retention vote this year. The new conservative campaign won't change Iowa's same-sex marriage law, but it further politicizes the state’s once-independent judiciary and may boost turnout for Mitt Romney in a key swing state.
Iowa conservatives were left with little recourse after Varnum v. Brien, the court's decision that legalized same-sex marriage; as opposed to states like California, the Iowa constitution is difficult to amend. Instead, conservative activists set their sights on the court itself, launching a first-of-its-kind campaign against three of the judges. Yes-or-no retention votes for state Supreme Court justices had always been routine, with no active political campaigning. After all, the merit system Iowa instituted in 1962 produced judges who were typically viewed as nonpartisan, outside the traditional ideological lines that define the national Supreme Court. But with the help of the National Organization for Marriage (NOM), the Family Leader—a group funded by the American Family Association and run by evangelical activist Bob Vander Plaats—launched a successful campaign to knock off Justices Marsha Ternus, David Baker, and Michael Streit.
On Saturday, the Family Leader announced a second anti-retention campaign against David Wiggins (the three other remaining Varnum justices won't be on the ballot until 2016) at a convention in Waukee, Iowa. It was a splashy event at a church outside Des Moines, with Rick Santorum, Rick Perry and Mike Huckabee on the speaking schedule. Brian Brown, president of NOM, pledged $100,000 in matching funds to the anti-retention campaign. Vander Plaats and Tamara Scott, the Iowa National Committeewoman-elect and Iowa Director for Concerned Women for America, will spearhead the effort.
Conservatives are optimistic that they will have an even easier time in their effort to oust Wiggens than they did in the last retention vote. From a basic awareness level, 2010 put retention votes, which had received little attention in the past, on the radar for Iowans. Iowa for Freedom spent a significant chunk of their time informing conservative voters that they weren't finished after completing the first page of the ballot and had to flip over to the second side if they wanted to kick out the justices. "Advertising that this retention is coming up should cost a fraction of what it did two years ago just because everybody is fully aware," says Chuck Laudner, a former executive director of the Republican Party of Iowa who served as campaign manager of the 2010 anti-retention campaign and will work as an advisor to the effort against Wiggins.
Major GOP officials—who stayed on the sidelines last time around—are also joining the fray. Republican Party Chairman A.J. Spiker recently put out a statement denouncing Wiggins, urging members of his party to vote no on retention this fall. "This is the only chance voters have to make their voice heard and we must take the opportunity to remove Justice David Wiggins from his post and show him his arrogance and disregard for the law does indeed have consequences," Spiker's statement reads.
It's not too surprising that the Iowa GOP has joined in the effort this time—judicial politicking has proven to be an effective strategy for exciting the conservative base. Social conservatives weren't thrilled with Terry Branstad atop the ticket as a gubernatorial candidate in 2010—he had trumped Vander Plaats in the primary and was viewed as a moderate, though his record over the past two years has proved otherwise—but showed up in droves to vote against the judges. With social conservatives still iffy on Mitt Romney and Iowa among the list of key swing states, it's likely that Republicans will once again use a campaign against the state Supreme Court to bump up turnout for the supposed moderate atop the ticket.
Liberal groups have vowed not to repeat the mistakes they made in 2010. Surveying Iowa liberals last summer, I heard three common explanations for why Vander Plaats succeeded: proponents of same-sex marriage lacked organization, were at a funding disadvantage, and had an unclear message. They were caught off guard when Vander Plaats announced his campaign in August 2010. In response, one group popped up from the state bar association to defend the justices; another nonprofit sought to educate Iowans about the judicial-merit selection system; a third raised funds for ads. The efforts of these groups overlapped, and none of them individually had money to run ads, as their opponents did.
Efforts are now funneled through one group, Justice Not Politics, an umbrella organization that is supported by a host of progressive nonprofits in Iowa. "I hope it will be different from 2010," says Sally Pederson, a former Democratic lieutenant governor and co-chair of the group. "I know it will be different in certain aspects. "One is that 2010 was an unusual election year across the board as far as the people who were energized and went to the polls—they were generally an angrier crowd. And there were a lot of people who just sat that election out, being an off-year election." She also believes that more voters will realize that a vote against the justices is an empty measure that won't overturn Varnum. And unlike 2010—when all Supreme Court justices on the ballot had taken part in the Varnum decision—there are three new judges on the ballot alongside Wiggins who have not incited the ire of social conservatives. Branstad appointed Thomas Waterman, Edward Mansfield, and Bruce Zager to fill the seats left vacant by the 2010 retention votes; they'll be on the ballot with Wiggins this year, leaving Vander Plaats to rail against a specific justice rather than the court en bloc.
But Justice Not Politics appears to be repeating some of the self-professed mistakes liberals made in 2010. Because the group was formed as a 501(c)4, the bulk of its efforts must be educational rather than campaigning. In other words, it won't directly advocate for Justice Wiggins' retention. "We've made the decision that we are not going to go out and campaign for or against any candidate in a judicial retention election," says Connie Ryan Terrell, chair of the board for Justice Not Politics. "But we do believe that the justices and the judges all serve our state in an outstanding manner."
Vander Plaats can directly speak about the benefits of removing Wiggins. Justice Not Politics, on the other hand, can only imply that he should be retained. And while Justice Not Politics is on pace to raise far more than liberals' meager sums in 2010, the group is still behind Vander Plaats' efforts.
In 2010, the justices' supporters made a clear decision to steer clear of discussing same-sex marriage. They did not want to cede Vander Plaats' efforts to turn the retention vote into a referendum on Varnum. While Vander Plaats railed against the evils of an unchecked, gay loving court, the pro-judge groups stuck solely to a defense of keeping the courts fair and impartial—a high-minded argument, but a tough sell that doesn't easily fit into the narrative of a political campaign. This time will be different, says Donna Red Wing, executive director of pro-LGBT group One Iowa. "We have to make it very clear that we do understand that this is not only about fair courts and justice retention with integrity ... It's also about same-gender marriage." Making that case has become even easier since 2010 as more and more Iowans approve of marriage equality. In a February poll by the Des Moines Register, 56 percent of Iowans opposed a legislative measure to ban same-sex marriage, with only 38 percent supporting such a measure, which would require amending the state's constitution.
Another key factor that might help liberals is that Justice Wiggins might join in the campaign. "It’s unfortunate that Bob Vander Plaats is continuing his campaign to insert politics and personal attacks into retention elections," Wiggins said in a statement. "I will respond to misinformation concerning the role of the judicial branch, merit selection, and my work on the court." In 2010, the three justices in 2010 chose a different path, making the collective decision to largely ignore Vander Plaats' effort and chose not campaign to maintain their seats on the bench. Partially, they didn't think the threat would ever be taken seriously by the voters of Iowa. They also worried about the compromises to judicial integrity and independence that would be involved with wading into the political arena.
Wiggins, on the other hand, has left open the possibility that he will raise funds and defend himself. He did not agree to an interview for this article, but when I spoke with him last summer, Wiggins indicated he would consider campaigning for himself, and while no one would confirm it on the record, the speculation among Iowa liberals is that Wiggins is preparing a campaign committee to combat the attacks. "I think he has to launch a campaign for retention. I have no doubt that that will happen," Red Wing says. "Wiggins has to campaign for his seat if he wants it. And how sad is that, that a Supreme Court justice has to fight for his seat?"