Judicial retention in Iowa: A permanent shift?

On Nov. 8 the voters of Iowa chose to retain the three justices who sought additional eight-year terms on the state's supreme court. The candidacies were of particular interest because the justices had all taken part in the 2009 Varnum v. Brien case that created an intense statewide controversy over same-sex marriage.

Six years ago, as Iowans will remember, three other Varnum justices stood for retention, with a very different outcome. A well-funded, high-profile campaign against those justices led to their defeats. Why were the 2016 justices retained when their 2010 colleagues were not?

The seemingly obvious answer is that much less of an effort was made to remove them. And this is true, in part; opposition to this year's candidates was nowhere near as visible as it was six years ago. But there is much more to the story, rooted in the long history of retention voting in the state.

Before 2010 Iowa's retention elections were among the quietest and least controversial in the nation. Of the 1,331 judges who sought retention between 1964 (when retention elections were first used in the state) and 2008, only four were defeated and only three others came within twelve percentage points of defeat.

In most of the other states that use retention elections there were many more controversies involving individual judges during the same period, controversies that attracted unusual numbers of votes to remove. While retention defeats are rare in any state - historically more than 99 percent of judges have been retained nationwide - Iowa stood out for having so few judges draw any negative attention at all.

This calm state of affairs led to a lack of voter attention to retention candidates. In the ten elections between 1990 and 2008, on average more than forty percent of Iowa voters simply skipped over the statewide retention section of the ballot. This was among the highest such percentages in the nation.

In 2010 the calm was shattered, and voter participation skyrocketed. Nearly 87 percent of Iowa voters voted for or against the three supreme court justices. Moreover, there was no organized voice opposing the anti-retention campaign for voters to hear. The kinds of legal and other public-interest organizations that in other states have weighed in on retention controversies were caught off guard and offered no effective support for the justices.

These two factors were critical in the 2010 defeats. Along with many regular retention voters who turned from 'yes” to 'no,” there were many previously silent voters who were swayed by the anti-retention campaign. And there was no experienced voice presenting the other side of the controversy.

Six years later, the same-sex marriage controversy still carries weight with some voters. Approval rates for the three justices who ran on November 7 were below historical averages by roughly ten percentage points. Nevertheless, the justices were retained by comfortable margins. Three factors were instrumental in their success.

First, a portion of the anti-Varnum vote in 2010 was a scorched-earth protest vote that also targeted all of the other judges on the 2010 ballot. This type of scorched-earth voting has occurred in other states as well. But it does not last, and voting patterns soon return to normal. True to form, in the 2012 election the scorched-earth vote had disappeared. This was the main reason for the retention of the seventh Varnum justice, who was on the 2012 ballot and won retention by less than five percentage points.

Second, the 2016 justices ran in a presidential election year rather than a midterm year. The absence of a presidential election can allow other races and ballot items to draw more attention; this significantly helped elevate the same-sex marriage controversy in 2010. Presidential elections also tend to produce slightly higher retention approval rates; this is because the more casual voters who vote only in presidential election years tend to vote 'yes” on retention candidates in particularly high proportions.

The third factor was simply the passage of time. In general, controversial retention candidates are relatively more vulnerable when the controversy is closer to Election Day and fresher in voters' minds. Varnum was a major news story in 2009 and 2010, but by this year it had faded more into the background and had less influence.

Notably, Iowans have continued to cast retention votes in greater numbers, even after 2010. Retention participation in the last three elections has exceeded historical averages by double-digit margins. This may prove to be an enduring benefit of the Varnum controversy. Whatever anyone may think of the 2010 defeats, a more engaged electorate is inarguably a healthy outcome for the entire state.

' Albert Klumpp is a Chicago-area research analyst whose 2005 Ph.D. dissertation was the first ever to examine voting patterns in judicial retention elections.