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The New Politics of Judicial Elections: 2009-10

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

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 Public financing for court elections, one of the signature reforms to protect elected courts in the last decade, was repealed in one state and faced severe funding threats in two others.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]