Louis Jacobson is a GOVERNING contributor.E-mail: email@example.com
Often, judicial races are sleepy. But sometimes they’re hard-fought, high-stakes, big-money affairs. And that’s the case this year in at least four states – Michigan, Florida, Iowa, and North Carolina.
All told, 20 states elect supreme court justices in partisan races. In recent years, these races have become a magnet for campaign dollars – often with business groups on the one side and plaintiffs’ lawyers and labor unions on the other side. In some states, such as Michigan and North Carolina, that pattern still holds true this year. But new battle lines are being drawn as well.
In Iowa, social conservatives are revolting for the second straight election cycle, targeting justices who signed onto the court’s 2009 decision legalizing same-sex marriage – the first time such marriages were approved in the nation’s heartland. And in Florida, as well as in Iowa, justices are being targeted in retention elections – the periodic yes-no votes that are intended to weed out seriously compromised judges and which are historically non-controversial.Meanwhile, in Alabama, another high-profile social conservative is running for chief justice – Roy Moore, who held the office until 2003, when he was ousted amid a controversy over a Ten Commandments monument he installed in the courthouse.
The amount of money spent this cycle on supreme court races may not set records, but that’s partly because some states that have been magnets for big spending in the recent past, such as Alabama and Texas, have been “won” by the pro-business Republican side, making this year’s contests uncompetitive, said J. Adam Skaggs, senior counsel with the Brennan Center for Justice at the New York University School of Law, a liberal group that tracks judicial races. (Here’s a full list of 2012 judicial races compiled by the Brennan Center.)
Following is a rundown of the four biggest judicial-election flashpoints for 2012:
For a decade or more, Michigan’s judiciary has been a fierce electoral battleground between Democrats and Republicans and between liberals and conservatives. This year, three seats are up for grabs – enough to shift the balance of the court, which is currently controlled by GOP-leaning justices, 4-3. The GOP has had the edge on the court almost exclusively since 1999.
Republican Justice Stephen Markman is seeking a second full term, while there's an open-seat race to succeed retiring Democratic Justice Marilyn Kelly. Markman and three other candidates are competing for those two seats -- Democrat Bridget Mary McCormack, an associate dean at the University of Michigan Law School and founder of the Michigan Innocence Clinic; Republican Colleen O'Brien, an Oakland County Circuit Court judge since 1998; and Democrat Connie Marie Kelley, a Wayne County Circuit Court judge since 2008.
Since Florida adopted its retention-election system in 1976, no judge has been denied another term. That could change this year. Three judges are up for retention -- R. Fred Lewis, Barbara Pariente, and Peggy Quince – and they’re facing fierce opposition by a Americans for Prosperity, a group funded by the Koch brothers, major donors to the libertarian cause; a Tea Party-affiliated group, Restore Justice 2012; and, in a break with its longstanding position of neutrality in judicial races, the Republican Party of Florida.
The three justices “were all appointed by a Democratic governor and are in the more liberal bloc of the court,” said Aubrey Jewett, a political scientist at the University of Central Florida. The court has a 4-3 Democratic majority and has been a thorn in the side of Sunshine State Republicans, who otherwise dominate the state House and Senate and have controlled the governorship for more than a decade.
“The three justices have raised a great deal of money to run ads to defend themselves and have spoken publicly and to the press that they think the impartiality of the court is under partisan and ideological attack,” Jewett said. “Republicans would dearly love to not retain all three so that Republican Gov. Rick Scott could replace them all with conservative Republican justices.”
The Miami Herald reported that for the first time ever, a tax-exempt political organization known as a 527 group has been formed to run television ads in the incumbent judges’ defense. The Democratic Party has not gotten involved, but the Fraternal Order of Police and the Florida Professional Fire Fighters have said they will provide support for the judges’ retention bids.“We had to speak out and educate – otherwise the attacks would go unanswered,’’ Quince said at a forum at the Florida State University College of Law, according to the Herald.
After Iowa’s unanimous – but contentious – same-sex marriage ruling in 2009, social conservatives mounted an aggressive effort to oust the justices involved in it. In the 2010 election, voters rejected continued service for three of the justices who were involved in the decision – the first rejections since the retention system was adopted in 1962. This year, many of the same groups are seeking to oust a fourth justice, David Wiggins.
The National Organization for Marriage, which opposes same-sex marriage, has spent at least six figures on ads, and Bob Vander Plaats, a leading social conservative in the state, mounted a “No Wiggins” bus tour. Former presidential candidate Rick Santorum and Louisiana Gov. Bobby Jindal have stumped in the state, urging people to vote no on the Wiggins’ retention, said Christopher Larimer, a political scientist at the University of Northern Iowa.
But social conservatives aren’t getting a free ride. An opposing bus tour sponsored by the Iowa State Bar Association followed the "No Wiggins" bus around the state, urging voters to retain the incumbent. "2010 was like a hand grenade into the Supreme Court chambers, and we don't want to have that repeated," Guy Cook, president-elect of the Iowa State Bar Association, told the Associated Press.
For various reasons, though, rejecting Wiggins may be a tougher challenge than the 2010 ousters.
For starters, 2012 is a presidential election year in which President Barack Obama has been heavily courting Iowa voters, rather than a midterm election in which the GOP was dominant nationally. In addition, voter sentiment in support of same-sex marriage in Iowa has increased. A Des Moines Register poll earlier this year found strong opposition to a constitutional amendment banning same-sex marriage. Perhaps most important, Wiggins is marshaling his forces to fight back – something the three targeted justices did not do in 2010. “Last time, the pro-retention forces took the high road and stayed above the fray,” said one political observer in the state. “That didn’t work out so well for them.”
A state supreme court race in the Tarheel State could also tip the balance between the two parties.
Incumbent Justice Paul Newby, a Republican, is seeking a second eight-year term, facing off against appeals court judge Sam Ervin IV, a Democrat. Ervin is the grandson of the late U.S. Sen. Sam Ervin, D-N.C., who chaired the Senate Watergate Committee, as well as the son of a federal judge, Sam J. Ervin III. Because of this lineage, Ervin is somewhat better known than the incumbent, especially among older voters and voters in western North Carolina, where the Ervins are from.
But Newby has been campaigning hard, and former North Carolina Republican chairman Tom Fetzer has formed a “super PAC” to support Newby – an unusual development for a judicial race. Civitas Action, a conservative group, backed Newby with radio ads in August. “If Newby wins, the Republicans retain a slender court majority, and if Ervin wins, the Democrats get the majority,” said Ferrel Guillory, director of the Program on Public Life at the University of North Carolina.
The contest is important “because key legislation passed in the past two years by the new Republican majority in the general assembly is being litigated now and is winding its way through the courts,” said Jonathan Kappler, research director for the pro-free-market North Carolina Free Enterprise Foundation. Also at stake are the redistricted maps drawn up after the 2010 Census.
Newby has secured the support of such pro-business groups as the state chapters of the Chamber of Commerce and the National Federation of Independent Business, while Ervin has been endorsed by groups representing plaintiffs’ attorneys, the AFL-CIO, the leading state teachers’ union and the state Police Benevolent Association, according to WRAL. The most prominent cross-party endorsement is Newby’s backing from two former Democratic justices on the state supreme court.A survey by the Democratic firm Public Policy Polling found Ervin leading Newby, 31 percent to 23 percent, with many voters undecided.
CORRECTION: This version of the story corrects how the three seats being contested in Michigan this year are divided between the candidates.
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