PJ Media

PJM Exclusive: Behind the Scenes of Iowa's Victory Over Judicial Activism

Since Tuesday, the entire country has been buzzing with the GOP’s victories over the Democrats at every level.  The size, scope, and lasting impact of those victories will be felt for a very long time to come.

But what may turn out to be Tuesday’s most important election happened in Iowa.  The Hawkeye State’s voters sent a very loud message that has shaken the state’s legal community to its core, put citizens back in the driver’s seat of state law and policy, and shown three justices on the state Supreme Court the door.  Iowa has put activist judges on notice: legislate from the bench, and we will fire you.

So what happened?  On Nov 2, three justices on Iowa’s Supreme Court were on the ballot in what’s called a “retention election.”  As I wrote for PJM a few weeks before the election, Iowa’s judges are appointed via a convoluted system in which the state bar wields a great deal of power, and the people hold very little.  Every few years on a rotating basis, a subset of the Supreme Court’s seven justices go on the ballot for a yes or no vote to retain them in office, and since the system was put in place nearly 40 years ago, no justice on the state’s Supreme Court had ever been voted out.  This has made appointments to Iowa’s Supreme Court de facto lifetime appointments.

But in April 2009, the Iowa Supreme Court discovered a right to same-sex marriage.  That right wasn’t written into the state constitution, or the federal constitution, or in any statutes anywhere.  And the court went a step beyond that, ruling that Iowa’s 160-year history of treating marriage as involving no less and no more than one man and one woman was also unconstitutional.  The people and their representatives had recently weighed in on the issue: Iowa had passed a Defense of Marriage Act in 1998, defining marriage along its traditional meaning.  The unanimous Supreme Court ruling trashed all of that history, and set up Tuesday’s verdict from the people.

But no justice had ever been voted out before.  They routinely coasted to victory — and thus retained their jobs —  with more than 75% of the vote.  Few Iowa voters ever paid much attention to the judicial retention elections.  So it would take a great deal of work to first educate voters about what a retention election is, what “yes” and “no” votes actually mean, and why voting to toss the justices who were on the ballot was not only possible, but vital to restoring the voters’ rights.

So with all of this in mind, I spoke with Wayne Hamilton of Murphy Turner & Associates.  Murphy Turner is the Austin-based consultancy that did most of the heavy lifting in the weeks leading up to the Iowa vote, and Hamilton was both the architect of the statewide strategy and the man on the scene.  He spent most of the 90 days leading up to Nov 2 on the ground in Iowa, coordinating message, strategy, and tactics between a very wide array of groups and activists both within and outside Iowa.  Hamilton’s efforts shocked the Iowa legal establishment, which had become accustomed to talking down to Iowans, ignoring their wishes, and winning massively anyway.

“We woke up on Nov 3 with the rest of the country, seeing a big sea change in Washington,” Hamilton said when I reached him by phone.  “Well in Iowa, we saw a big sea change when for the first time in the history of the state , three Supreme Court justices were voted off the Supreme Court because of their overt judicial activism. … They’re still stunned, trying to figure out what just happened to them, and I’m sure they’re looking in the mirror going, ‘Was I just hit by a truck?'”

That “truck” was the voters of Iowa, and a network of groups and folks who got together under the banner of Iowa for Freedom to campaign for firing the three justices of the seven who were on the Nov 2 ballot.  All three justices who were on the ballot lost by wide margins of 10 to 11 percentage points.

Hamilton’s company, Murphy Turner, does consulting work for the American Family Association, which is how he became involved in the judicial retention election.  Working with David Lane and Don Wilemon of the AFA, Hamilton connected with Republican Bob Vander Plaats, who had narrowly lost the Iowa GOP gubernatorial primary, and Jeff Mullen, pastor of the Point of Grace Church in Waukee.  They in turn worked with other groups around Iowa to build a grassroots network that spanned the state and ran what amounted to a full political campaign, only one that backed no single candidate.  Its purpose was to fire three judges at one time, for the first time in Iowa history.

That made their robocalls tricky, since the call had to first tell voters what the election was about and then get them to respond to a query on how they would vote.

Hamilton says that when he and the coalition’s other leaders got together, the first thing they did was take a realistic look at what they were up against.  “We realized that this was a long shot, we realized that these are virtually impossible for a judge to lose.  But we just don’t think these judges need a free ride,” says Hamilton.  Vander Plaats agreed, but as they looked around, all of Iowa’s good campaign operatives were spoken for and, with about 90 days before the vote, there was no money to run the campaign.  So Hamilton ended up temporarily moving from Texas to Iowa to run the campaign himself. Committing himself wholly to the effort didn’t turn out to be a tough call.

“The more I think about it, this is right.  We’ve got people on the ground in Iowa who are willing to do it.  They need somebody who can come in with some experience to run it.”

For its part, in a postmortem article the New York Times tried to cast Hamilton and the rest of the “No” campaign as an out-of-state effort.  Hamilton counters that the loudest proponent of retaining the judges was the nominally neutral Des Moines Register, which is owned by a company in Virginia, Gannett News Service.

“They kept saying AFA is run out of Tupelo, Mississippi, but the reality is that AFA had over 20,000 constituents in Iowa.  The reality of it is that the American Family Association has a greater constituency in Iowa than does the Iowa Bar, so to say that it’s an out of state operation is just smoke and mirrors.”  And from Vander Plaats’ group to the network that Mullen would set up, most of the Iowa for Freedom ground troops were Iowans.

From a nuts and bolts perspective, winning came down to lots of traditional campaigning and staying on message, across both the traditional campaign tactics and social media.  The campaign’s catalyst was same sex marriage, but the campaign hit the larger theme of judicial activism and never wavered from it.  As the effort’s spokesman, Vander Plaats consistently hammered on the threat that judicial activism poses to freedom, while the spokesmen for the “Yes” side talked down to the voters and even mischaracterized what the law concerning retention actually said.  The Iowa for Freedom campaign also had a grassroots effort that organically rose up to do everything from print yard signs to make calls and publish a voters guide.  AFA worked with the Iowa Faith and Freedom Alliance to distribute more than 200,000 voters guides, which according to Hamilton is more than have ever been distributed by a single campaign in Iowa before.  A volunteer phone bank cranked out over 20,000 calls in the last 45 days, while a letters to the editor campaign was organized through the grassroots groups.  Church leaders like Mullen stepped up and, through a site called IowaPastors.com, got the word out on YouTube and social networking.  The traditional campaign went viral, and soon the polls had tightened and it began to look like it was possible to deny the judges not only their free rides, but their jobs as well.

The question now is, with three judges ousted, did the other four on the Iowa Supreme Court get the message to stay away from judicial activism?  Hamilton thinks so.

“It’s like this, I think everybody in Iowa got the message.  Our focus was on those three Supreme Court judges for making law from the bench.  Pure, cold, hard judicial activism.”

So, did the Iowa for Freedom campaign and victory politicize the Iowa judiciary, as the “Yes” side charged?

“The judges politicized it the day that they decided to legislate from the bench.  We see how all along this has been an extremely political system, the only thing is, the voters were never a part of it.  Only the state bar was a part of it.”

Now the people of Iowa have had a say, and they have voted against judicial activism.  The other four justices, and all judges elsewhere who are tempted to legislate from the bench, are on notice.