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.