New York — In a startling turn from the past decade, states that work to insulate judges from electoral pressures are facing some of the nation’s most contentious, and potentially costly, court elections this fall, two nonpartisan reform groups said today.
According to data released by the Brennan Center for Justice at NYU School of Law, national conservative groups had spent more than $121,000 on TV ads in Iowa, through Sept. 21st, seeking to unseat three incumbent justices. The state bar association also has aired ads in Colorado, where three sitting justices are under attack. And an incumbent under challenge in Illinois began airing ads this week.
What makes the races in Iowa, Colorado and Illinois, as well as a fourth election in Kansas, so unusual is that none involves traditional multi-candidate elections. The judges up for election in those states all appear alone on the ballot, with voters asked to cast “yes” or “no” votes on whether to grant another term.
These one-candidate elections, known as retention elections, all but escaped a tidal wave of special interest spending that engulfed competitive high-court races in the last decade. But spending on retention elections is likely to spike this year, possibly exceeding the national total for such races for the entire 2000–09 decade, with various types of conservative groups mounting all four challenges.
In Iowa, where social conservatives are seeking to oust three justices who took part in a unanimous ruling legalizing same-sex marriage, challengers say they have raised at least several hundred thousand dollars for a “vote no” campaign. In Illinois, business groups are challenging Illinois Justice Thomas Kilbride over a ruling overturning medical malpractice limits. In Colorado, a group called “Clear the Bench” is angered by court rulings it says will raise taxes, and in Kansas, social conservatives vow to vote out Justice Carol A. Beier over her views on abortion. That campaign’s slogan is “Fire Beier.”
“Over the last ten years, arms-race spending, mudslinging attack ads, and special interest domination have become the norm in contested, multi-candidate judicial elections,” said Adam Skaggs, counsel at the Brennan Center. “To date, single candidate retention elections have avoided this type of campaigning. But all signs suggest that in 2010, deep-pocketed special interest groups are setting their sights on previously sedate retention elections.”
National TV spending data, as well as links to the Iowa and Colorado ads, are available at “Judicial Elections 2010,” a new web page jointly hosted by the Brennan Center and the Justice at Stake Campaign. The site, available here, will provide regular updates on TV ads, fundraising and key political players in 2010 state high-court elections. The organizations have jointly released supreme court election season data since 2006.
While state high-court candidates raised $206.9 million in 2000–09, more than double the $83.3 million raised in the prior decade, only $2.2 million, or 1 percent of the total, was raised in retention elections, according to the recently issued “New Politics of Judicial Elections 2000–2009: Decade of Change.”
Thirty-three states have some form of judicial election this fall. Eighteen seats are being contested in 11 states with multi-candidate elections, while 37 justices are seeking voter approval in retention elections in 15 states. In seven other states, the incumbents face no challengers in competitive elections and will automatically be reelected.
Notable states with competitive elections include Alabama, Michigan, Ohio, and Texas. All ranked among the nation’s six most expensive states for supreme court elections in the last decade, according to the “New Politics 2000–2009” report.
In Michigan, where the court is closely divided and two seats are being contested, local reform groups have predicted that spending on the court race could top $10 million. But to date, the campaigns have avoided the TV air waves, and the most prominent advertising has been a series of radio ads attacking Justice Alton D. Thomas, a Democrat recently appointed to fill a court vacancy. Republican Justice Robert Young also is seeking reelection; Young has been targeted by internet attack videos sponsored by the Democratic Party.
“The big story of 2010 is that new states are being introduced to big-money court elections, but unfortunately we don’t see any change in states that already are battlegrounds,” said Charles Hall, a spokesman for Justice at Stake. “Special interests on both the left and right continue to see state court elections as an investment, hoping to tilt the scales of justice in their favor.”
The Brennan Center’s television data for Iowa, Illinois and Colorado were gathered by TNS Media Intelligence/CMAG, which captures satellite data in major U.S. television markets. Leading up to the November elections, the Brennan Center is releasing real-time reports on television advertising in state Supreme Court elections, based on the TNS/CMAG data. Links to videos and storyboards of all TV ads aired in judicial elections this fall can be found on the Brennan Center’s “Buying Time 2010” website, by clicking here.
The Iowa TV ad, aired by a group called “Iowa for Freedom” that is linked to the American Family Association and the National Organization for Marriage, alleges that “activist judges on Iowa’s supreme court have become political, ignoring the will of voters and imposing same-sex marriage on Iowa. . . . What will they do to other long-established Iowa traditions and rights?”
The ad aired in Des Moines, Cedar Rapids and Sioux City, at an estimated ad-purchase cost of $121,360, according to TNS/CMAG data. The American Family Association, based in Mississippi, and National Organization for Marriage, based in New Jersey, played active roles in California’s Proposition 8 campaign to ban same-sex marriage.
Justice Kilbride began airing a biographical ad in the Peoria, Illinois, TV market in which he narrates, saying: “I am not a politician. I am a husband, a father and grandfather. . . . As a judge, I’ve tried every day to be fair and evenhanded, and most of all, to make sure the law works for everyone, not just the wealthy and well connected.”
The Colorado Bar Association ad, which has run since August, does not directly refer to the three justices seeking retention, but interviewed typical voters who say they know little about judicial candidates, and urged voters to go to a voter-information site. That ad aired 626 times, at an estimated air-time cost of $87,000.
Including ads aired earlier this year in primaries in Alabama, Arkansas and Idaho, more than $1.2 million has been spent on TV ad time in 2010, according to TNS/CMAG.
Including 2009 TV spending in Pennsylvania, Wisconsin and Louisiana, total TV spending for 2009–10 is $9.4 million. The most expensive two-year cycle to date is 2007–08, when an estimated $26.6 million was spent on state high-court TV ads, by candidates and independent special-interest groups.
The Justice at Stake Campaign is a nonpartisan national partnership working to keep our courts fair, impartial and free from special-interest and partisan agendas. In states across America, Campaign partners work to protect our courts through public education, grass-roots organizing and reform. The Campaign provides strategic coordination and brings organizational, communications and research resources to the work of its partners and allies at the national, state and local levels. For more information, visit www.justiceatstake.org.
The Brennan Center for Justice at New York University School of Law is a nonpartisan public policy and law institute that focuses on fundamental issues of democracy and justice. The Center works on issues including judicial independence, voting rights, campaign finance reform, racial justice in criminal law and presidential power in the fight against terrorism. Part think tank, part public interest law firm, part advocacy group, the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. For more information, visit www.brennancenter.org.
All data on ad airings and spending on ads are calculated and prepared by TNS Media Intelligence/CMAG, which captures satellite data in that nation’s largest media markets. CMAG’s calculations do not reflect ad agency commissions or the costs of producing advertisements. The costs reported here therefore understate actual expenditures; the estimates are useful principally for purposes of comparison of relative spending levels across states.