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finan­cing for court elec­tions, one of the signa­ture reforms to protect elec­ted courts in the last decade, was repealed in one state and faced severe fund­ing threats in two others.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