The New Politics of Judicial Elections: 2009-10

October 26, 2011

How special interest "Super Spenders" threatened impartial justice and emboldened unprecedented legislative attacks on America's courts.

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Introduction

On Election Day 2010, for the first time in a generation, three state supreme court justices were swept out of office in a retention election when voters expressed anger over a single controversial decision on same-sex marriage. The special-interest campaign—which poured nearly a million dollars into Iowa to unseat the justices—was the logical culmination of a decade of rising efforts to inject more partisan politics into our courts of law.

Outside money continued its hostile takeover of judicial elections. More than ever, a small num­ber of super spenders played a dominant role in influencing who sits on state supreme courts. Much of this influence was exercised secretly.

But Election Day was only the beginning. Campaign leaders in Iowa issued a blunt warn­ing to judges around the country that they could be next. For the next half year, legislatures across the country unleashed a ferocious round of attacks against impartial justice.

More judges were threatened with impeachment than at any time in memory. Merit selection, an appointment system that has historically kept special-interest money out of high court selec­tion in two dozen states, faced unprecedented assault. Public financing for court elections, one of the signature reforms to protect elected courts in the last decade, was repealed in one state and faced severe funding threats in two others.

The story of the 2009-10 elections, and their aftermath in state legislatures in 2011, reveals a coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law. In its full context, the most recent election cycle poses some of the gravest threats yet to fair and impartial justice in America.

A total of $38.4 million was spent on state high court elections in 2009-10, slightly less than the last non-Presidential election cycle, in 2005-06. However, $16.8 million was spent on television advertising—making 2009-10 the costliest non-presidential election cycle for TV spending in judicial elections. Outside groups, which have no accountability to the candidates, continued their attempts to take over state high court elec­tions, pouring in nearly 30 percent of all money spent—far higher than four years earlier. Two states, Arkansas and Iowa, set fundraising or spending records in 2010, following a decade in which 20 of 22 states with competitive supreme court elections shattered previous fundraising marks.

Laced among these numbers were several wor­rying trends:

  • In many states, small groups of “super spenders” maintained a dominant role, seeking to sway judicial elections with mostly secret money. Of the top 10 super spenders nationally, there was only one newcomer, the National Organization for Marriage. Unlike in 2007-08, when the biggest groups on the left and right established a rough parity, business and conservative groups were the top spenders in 2009-10.
  • Spending also spiked on judicial reten­tion elections, which—with a hand­ful of notable exceptions—had been extremely resistant to special-interest encroachment before 2010. Retention elections accounted for 12 percent of all election spending—compared with just 1 percent for the entire previous decade. [See Chapter 1, The Money Trail]
  • Costly television advertising remained all but essential to win a state supreme court election, while TV ads by non-candidate groups often resorted to rank character assassination against sitting judges. Even in states that lacked competitive races, such as Ohio and Alabama, candidates and groups poured millions of dollars into costly ad campaigns. [See Chapter 2, Court TV, 2009-10]
  • Across the country, the 2010 judicial and legislative elections ignited an unprecedented post-election attack on state courts. This included challenges to merit selection systems for choosing judges, a campaign to roll back public financing, and threats to impeach judg­es for unpopular decisions. [See Chapter 3, Implications of the 2009-10 Elections]

About the Authors

Adam Skaggs is Senior Counsel in the Brennan Center for Justice’s Democracy Program, where he works on a range of judicial independence, voting rights, and election administration issues. Before joining the Brennan Center, he was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP. In 2003, Mr. Skaggs graduated summa cum laude with a J.D. from Brooklyn Law School, and was a member of the Brooklyn Law Review. He subsequently clerked for Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit and Judge Edward Korman, Chief Judge of the U.S. District Court for the Eastern District of New York. Mr. Skaggs received an M.S. in Urban Affairs from Hunter College of the City University of New York, and holds a B.A., awarded with distinction, from Swarthmore College.

Maria da Silva is a Research Associate in the Democracy Program where she focuses on the Center’s Fair Courts and Voting Rights and Elections campaigns. Ms. da Silva received her International Bacclaureate from the Armand Hammer United World College and then attended Brown University, where she majored in political science and served as a student coordinator for the university’s women’s center. Prior to joining the Brennan Center, Ms. da Silva worked in San Francisco at a civil rights and employment discrimination law practice. She has also worked with both the Public Defender Service of Washington D.C. and the Legal Aid Society of New York criminal defense practices in investigative and paralegal capacities.

Linda Casey is lead researcher at the nonpartisan, nonprofit National Institute on Money in State Politics. In addition to comprehensive research duties, she has focused on judicial elections since 2001. “High Court Contests: Competition, Controversy and Cash in Pennsylvania and Wisconsin,” “Diversity in State Judicial Campaigns, 2007-2008,” “Judicial Diversity and Money in Politics: AL, GA, IL, NM, NC, OH, PA, WA, WI.” Ms. Casey earned degrees in political science and sociology from Carroll College, in Helena, Montana. Before joining the National Institute in 1996, she worked for several nonprofit organizations and served as a financial officer for a number of statewide and legislative political campaigns in Montana.

Charles W. Hall is Director of Communications for the Justice at Stake Campaign. A career journalist, he worked for 20 years as a reporter and editor for the Washington Post, including extensive stints covering federal and local courts. Before joining Justice at Stake in 2008, Mr. Hall was manager of presidential communications for the American Bar Association. He also is active in civic affairs in Northern Virginia, and has had numerous commentaries published on regional land use policies. Mr. Hall can be reached at chall@justiceatstake.org.


The New Politics of Judicial Elections: 2009-10