On Tuesday, Nov. 5, Iowa voters had the option of voting to retain 69 judges to a variety of courts across the state. Among them was Justice David May, the only judge up for retention for the Iowa Supreme Court during this election cycle. May was retained by 63.3 percent of the vote, despite social media calls urging voters to oppose his retention in response to May’s controversial vote to uphold Iowa’s six-week abortion ban on June 28, 2024. May, who was appointed by Governor Kim Reynolds in 2022, voted as part of a 4-3 majority that ultimately ruled that abortion is not a fundamental constitutional right under Iowa law.
Iowa is one of 14 states that uses merit selection, a form of judicial appointment system in place of judicial elections. Steve Carroll `68, a former judge with 38 years of experience, said that Iowa’s merit selection system of judicial appointment was adopted in 1962 following a constitutional amendment. The merit selection process was instituted to safeguard judicial independence and keep partisan politics out of the Iowa judiciary. Retention elections were designed to remove judges who do not adequately perform their duties.
Carroll said the margins by which the 69 judges won their retention elections on Tuesday were typical, saying that a 25 percent “no” vote can usually be counted on. He said he thinks some people vote “no” in judicial elections just because they have a preconceived dislike of judges.
Guy Cook, a lawyer and past president of the Iowa Bar Association, echoed this sentiment. He said, “I think there’s a certain percentage of people who just vote no on all the judges to let them know ‘We are watching you,’ that you don’t have a free ride or something. It’s not really a thoughtful exercise of the franchise.”
Although Cook agreed with Carroll that the margins by which May and the other judges were retained were normal, he said “I think the social media campaign was probably more reflected in the judicial review results, where [May] received a lower number than he previously had.”
Cook said retention elections are not a referendum on a particular decision.
“It’s a question whether the judge is honoring the oath of office with the same merit that they had when they were nominated by the merit selection panel and when the governor appointed them,” Cook said.
Kathie Obradovich, editor-in-chief for the Iowa Capital Dispatch, said that concerns over judicial independence in Iowa arose in 2010 when three Iowa Supreme Court justices — Chief Justice Marsha Ternus, Justice David L. Baker and Justice Michael Streit — lost their retention elections. The losses followed Varnum v. Brien (2009), a unanimous Iowa Supreme Court ruling that legalized same-sex marriage. Obradovich said that the Family Leader group, headed by Bob Vander Plaats, led a coordinated campaign against the three justices who were up for retention at the time. “It was really bankrolled by out of state money … and they succeeded.”
Cook has been involved with judicial retention elections since 2011 after witnessing the campaign against the judges in Varnum v. Brien (2009). As Chair of the Independence of the Judiciary Committee, Cook says the group defends judges when campaigns organized around single issues threaten to unjustly impact their retention elections. “Judges are really not in a position to defend themselves, so when there is an unfair attack, then we usually respond with support for the judge, either by way of editorial or other publications,” he said.
Cook said that he has seen similar efforts in the lead-up to May’s retention election. “There was a fair amount of grassroots efforts directed at May primarily driven around social media platforms, letter writing campaigns and some essays. That’s where most of the energy came from.”
Cook said that such efforts are misguided for several reasons. He said a decision to not retain May would have achieved nothing, because it would not change the Court’s ruling and Governor Kim Reynolds would likely appoint a judge who would rule in similar ways. Additionally, such a result would have further eroded the independence of Iowa’s judiciary, according to Cook and Carroll.
Cook also said that analyzing judges’ records on rulings does not substantiate the perception that judges will simply vote in accordance with the political agenda of the governor who appointed them. “Once the judges get on the bench, they’re obligated to follow their oath of office, which is to make decisions without fear or favor,” he said. “While they might have a particular judicial philosophy, they’re not obligated to be bidders for whoever appointed them.”
“When you have a very high-profile case like abortion, and you’ve got a court that’s entirely appointed by a Republican governor, it seems at least more likely that those cases will go the way of the conservative politician,” Obradovich said. “However, [the abortion ruling] was not a unanimous ruling. Some of the justices who ruled on the Varnum case for same-sex marriage were also appointed by Republicans as well,” Obradovich said.
“You know, judges don’t put their finger up in the air and see which way the wind is blowing,” Carroll said. “We have made such an effort to stay out of politics. I did not have a yard sign in my yard until this year after I retired. I did not go to any political activity whatsoever. I would not go to caucuses. I would not give money to campaigns.”
Cook said that he thinks people sometimes conflate what happens at the U.S. Supreme Court with the Iowa Supreme Court. “It’s two different animals,” he said. “The process for how judges get to those positions is completely different. And Iowa, because of its merit selection process, has routinely been rated one of the top judiciaries in the country, for fairness and for impartiality.”
“The bar has to educate people on our system. And it’s frustrating — the cynical view that so many people have that’s clouded with the view they might have of the federal level which washes over into the state level. Iowa has a very clean, corruption-free, well-recognized judiciary, but people’s viewpoints can be affected by what they see at the federal level.”
