The last time Iowa Supreme Court Chief Justice Marsha Ternus was on the ballot, nearly half of voters didn't bother to weigh in on whether she should keep her job. What a difference eight years and a ruling allowing gay marriage can make.
In Tuesday's election, retention votes for Ternus and justices Michael Streit and David Baker have been drawing nearly as much attention as the races for governor and U.S. Senate. Groups on both sides have aired TV ads, organized campaign bus tours and spotlighted support from politicians ranging from a former Republican governor who supports the judges to nationally known Republicans who back their ouster.
"The whole issue of same-sex marriage has become a very threatening issue to a significant portion of the population," said Drake University political science professor Dennis Goldford. "Kicking out those three justices would be a warning shot across the judiciary's bow."
Last year, the Iowa Supreme Court unanimously upheld a lower court ruling that a state ban on same-sex marriage violates the constitutional rights of equal protection. Since then, hundreds of same-sex couples have been married in the state and many conservatives have called for punishing justices up for retention votes, which are held when justices' eight-year terms are up.
Polling conducted after the court's ruling showed roughly 40 percent of Iowans favor a ban on gay marriage and 40 percent support continuing the current law. The remaining percentage wasn't sure.
A poll published Sunday in The Des Moines Register found 37 percent of 805 likely voters polled intend Tuesday to vote to remove all three justices, while 34 percent said they would vote to retain all the judges. Another 10 percent plan to retain only some justices, 11 percent don't intend on vote on the judges and 8 percent weren't sure how they would vote. The telephone poll conducted last week had a margin of sampling error of 3.5 percentage points.
A decision to oust a state Supreme Court justice would be a first since voters approved a constitutional amendment creating the current judge appointment and retention system nearly 50 years ago.
In most elections, the retention votes are afterthoughts. Voters must turn over their ballot to decide on the Supreme Court, Appeals Court and District Court judges listed, and in most elections, many people don't bother.
In 2008, more than 500,000 of the 1.5 million voters skipped the judge retention votes
In 2002, when Ternus and Streit were last on the ballot, just more than half of the 1.1 million ballots cast included votes on the judges. In that election, Ternus and Streit were retained by 3-1 ratios.
Conservative Sioux City business consultant Bob Vander Plaats has headed the campaign to remove the justices.
The three justices on the ballot Tuesday are the first to come up for retention votes. Vander Plaats said he expected campaigns against the other justices when they appear on the ballot in later elections.
Vander Plaats said his supporters are sending a message that judges and elected officials need to pay attention to regular people and their views. They've draw support from national groups that oppose gay marriage and some well-known figures, including former U.S. House Speaker Newt Gingrich and former U.S. Sen. Rick Santorum.
"They really believe that the officeholders, the ruling class, they have completely forgotten about the working people," said Vander Plaats. "The people are rising up in the 2010 election to have their voices heard."
Opponents have responded that most of the $650,000 donated to the anti-justice group came from out-of-state conservative groups.
Former Democratic Gov. Tom Vilsack, now the U.S. Agriculture Department secretary, said these groups want to intimidate judges.
"Judges are selected on their merit. They're not selected on their ideology," Vilsack said.
Former Republican Gov. Robert Ray took a similar stand, telling reporters on a conference call that, "I think all of us would agree to keep politics out of the courtroom."