Nathan Bass Nov. 7, 2012, 6:20am
DES MOINES, Iowa (Legal Newsline) - Thirty-three states had Supreme Court judicial elections on the ballot Tuesday, including a retention election for four justices in Iowa.
Most of the elections around the country were the standard contests between two or more candidates. However, there were several "retention votes" on the ballots this year as well. In a retention vote, voters are simply asked to vote "yes" or "no" to whether a justice should be allowed to keep his or her seat.
There are five states that state court watchers view as particularly important in 2012 and one state with an intriguing story.
In Iowa, justices face a retention vote after their first year on the bench and then every eight years after that. They must receive a simple majority vote to keep their job. Iowa has adopted a nonpartisan system of nominating and appointing judges in an attempt to insulate them from partisan political influence.
All four justices of the Iowa Supreme Court who were up for retention Tuesday were retained by the voters. Of the four justices, only Justice David Wiggins had to fight to retain his position. Wiggins was part of a unanimous 2009 ruling that invalidated a state law that limited marriage to between a man and woman.
In 2010, three other justices who had voted in that case were not retained. In a recent op-ed, the three ousted justices claimed that their votes in the Varnum decision came about due to the simple application of the rule of law to the case. They claimed that permitting gay marriage was the only sound legal decision they could make.
The proponents for the Wiggins ouster argued that the justices ignored court rulings in other jurisdictions, and particularly Nebraska, which came to the opposite conclusion on the same issue.
Although Wiggins' retention vote was much closer than were the votes of the other three justices, he won a by a relatively comfortable 55 percent to 45 percent margin to retain his seat.
Florida Justices R. Fred Lewis, Barbara Pariente and Peggy Quince survived their retention votes handily, all by approximately 2-1 advantages. Although Florida began retention votes in 1978, no Florida justices had faced the kind of organized opposition that emerged this year.
The Florida Republican Party executive committee voted unanimously to oppose all three justices. No political party had ever taken a position in the retention votes in the state of Florida before. National organizations Americans for Prosperity and Restore Justice 2012 came into the state and spent considerable money in opposition to the justices.
The opponents labeled the three justices "activists" and cited a handful of rulings as evidence. The list of controversial rulings included decisions removing a constitutional amendment that challenged Obamacare, giving a new trial to a convicted killer and overturning Republican Gov. Jeb Bush's private school voucher program in 2006.
The justices and their supporters successfully argued against the focus of their opponents in the retention process. They argued that merit retention elections should be based not on specific rulings but rather on factors like scholarship, legal knowledge, integrity, judicial temperament, and perceived impartiality.
The Michigan Supreme Court's 4-3 conservative majority was a union target this year due to Proposal 2, the Michigan "Protect Our Jobs" Amendment which would have added the right to collective bargaining for public and private sector employees to the state constitution. Although the proposal was not voted in, the unions were active in trying to get it passed and in getting justices in place for their expected assault on Michigan labor law.
There were three seats on the ballot in the election. Conservative Justice Brian Zahra, who was appointed to the Court in 2011, successfully defended his seat in the partial election for the term ending in 2015 by capturing more than 50 percent of the vote against his two challengers.
In the other race, the top two vote getters out of the seven contenders will serve full terms on the Court. Another conservative incumbent, Justice Stephen Markman, retained his seat and newcomer Bridget Mary McCormick, a Democratic Party nominee, will assume the seat vacated by retiring Democratic Justice Marilyn Kelly. This lineup will presumably preserve the 4-3 conservative majority of the court.
The North Carolina Supreme Court had only one seat up for election this year but this election was widely considered to be one of the most important of the races on the ballot. Conservatives will continue to hold onto their 4-3 majority as Justice Paul Newby retained his seat by defeating Sam J. Ervin in a close 52-48 election. Republican Pat McCrory won the election for Governor and Justice Newby's retention of his seat will likely be very important in how several controversial issues, including redistricting, that arose out of the Republican takeover of the General Assembly in 2010 will be resolved.
Like Michigan and North Carolina, conservatives hold a narrow 4-3 majority on the Supreme Court of Louisiana, and eight candidates were seeking to replace Chief Justice Kitty Kimball, who will retire in January. There were five Republicans, two Democrats, and one unaffiliated candidate in the election for the Fifth Supreme Court District position. Democrat John Michael Guidry and Republican Jeff Hughes were the two biggest vote getters tonight and will compete in a run-off on Dec. 1.
While the election of former Chief Justice Roy Moore as Alabama's next chief justice today may not have had the broader implications of Michigan or Florida's judicial races, it did feature Moore, who was ousted from the chief justice position in 2003 after famously refusing to remove a monument of the Ten Commandments from the state judicial building in Montgomery.
Moore made an unsuccessful bid for governor in 2010 but made it back to the Supreme Court Tuesday by defeating Jefferson County Circuit Judge Bob Vance. Vance had an unusual road to the Democratic nomination himself, being drafted after Democratic nominee Harry Lyon was disqualified by the Alabama Democratic Party for the controversial comments he made about Moore, gays and gay marriage.
In the final analysis, the overall make up of each of the featured courts seems to have remained the same, with the possible exception of Louisiana, which will pick between the Republican and the Democratic candidates on Dec. 1. Interestingly, this mirrors the retention of the status quo in the national election which saw President Obama re-elected, while each of the House and Senate retained their partisan majorities.