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Election 2012: Iowans Reverse Trend, Retain Supreme Court Justice Who Ruled on Same-Sex Marriage

Once again, Iowa voters took a defining stand on gay marriage in America and politics in the judiciary.

Election 2012: Iowans Reverse Trend, Retain Supreme Court Justice Who Ruled on Same-Sex Marriage

After a statewide rebuke two years ago of Iowa Supreme Court justices whose controversial ruling set the stage for same-sex marriage, Iowans reversed course Tuesday, retaining Justice David Wiggins.

With 83 percent of precincts reporting, the West Des Moines jurist received a 54 percent retention rate. 

Two years ago, three of Wiggins' colleagues in the unanimous 2009  Varnum v. Brien ruling, were tossed out by voters. The Varnum decision found that a law defining marriage as between a man and a woman represented unlawful discrimination under the Iowa Constitution.

In a statement, One Iowa, the state's largest advocacy group for lesbian, gay, bisexual and transgendered Iowans, said the retention vote and other ballot mreasures around the country Tuesday "show unequivocally that the tide is turning in this country and that the arc of history is bending towards justice."

Bob Vander Plaats, the head the anti-Wiggins group Iowans for Freedom, did not return Patch phone calls. However, he told the Des Moines Register that with the 54 percent approval rate was " not a great validation for Justice Wiggins."

Vander Plaats and his Iowans For Freedom were feeling heady over their success two years ago and waged a high profile campaign with political celebrities like Rick Santorum, the former Pennsylvania senator who won the caucuses by courting the same Christian conservative voters who turned the judges out of office in 2010.

Iowa State Bar Association spokeswoman Cynthia Moser said Tuesday's vote should quash that. She called it "decisive" and said she hoped it would prevent future challenges to judges, according to the Register.

"We're very pleased with the numbers we received," Moser said.

Three other justices – Edward Mansfield, Thomas D. Watermann and Bruce B. Zager, all appointed by Gov. Terry Branstad to the high court in 2011 after the historic 2010 judicial bloodletting – were also retained, but by larger margins, around 74 percent.

After the polls closed Tuesday, Iowa's LGBT activists gathered at a downtown Des Moines coffeeshop to see if Wiggins would remain on the bench and to hear results on several important gay rights ballot measures around the country. 

Tofoya wiped tears from her eyes when news broke that Maine and Maryland voters legalized same-sex marriage in a historic vote that was, in some respects, the antithesis of what happened in Iowa in 2010. A similar measure is on the ballot in Washington state, and Minnesota voters are deciding whether to reiterate a ban on same-sex marriage in their Constitution.

"We've never had a pro-marriage win at the ballot box," Tafoya said. "If we can win in Washington and Maryland, that's huge."

Before Tuesday, LGBT equality groups had never won a statewide public vote. Votes in Iowa, Maryland and Maine were "historic," Tafoya said.

"Voters tonight have made it clear that equality is an American and an Iowan value," she said.

Vote "Bigger Than" Whether Jurist Kept His Job

Activists said there was more at stake in Tuesday'ss election than whether Wiggins kept his job.

"What it means is that if you can get enough people together, you can basically undo decades of constitutional precedent," said John Burns of Johnston, who recoiled at "the idea that an interest group can go in and bully the judicial system into trying to accept their extremist views."

"The retention issue is bigger than this," he said. "The idea that you can over-rule a court decision on a constitutional issue – that just cuts to the core of our whole system."

"Organized Bigotry"

Tizzy Hyatt said she came to the party because she wanted to watch the election restults in a place where she felt welcome.

She's not gay, but she said the vote to oust three Supreme Court judges two years ago was "organized bigotry by people who used the government and legal systems to promote hate."

She said that, "sadly," she wasn't surprised by the vote two years ago, but thinks marriage equality proponents are better organized this year.

"There's been more awareness from people who want equal rights," Hyatt said. "What I want to know is, so exactly how has your life changed since gay marriage became legal? Oh, yeah, not at all."

Ironic Turn in Iowa’s Quest for Judiciary Free of Politics

The ultimate irony of the recall campaign may be that Iowa changed its system to appoint rather than elect judges to remove politics from their selection. Having to campaign for their jobs politicizes the court, according to groups like Justice Not Politics, a broad-based, non-partisan coalition of individuals who believe courts should be free from political and financial influence.

Forcing judges into a position where they have to campaign for their jobs – something Wiggins steadfastly refused to do – pushes them more squarely into politics, those groups say.

“The longstanding process before 2010 was retention was basically automatic,” University of Iowa law professor Todd Pettys told Patch. “Here we are two years later. Now the decision Iowans have to make is, was that a one-time thing, or is this a new way of doing business?”

What happened in 2010 was unprecedented, the first time in history that Iowa voters rejected a member of the high court although anti-retention votes have occurred in the lower courts. The merit system of retention votes was introduced in Iowa in 1962.

Voting on down-ticket issues like judicial retention is historically – or was, until the watershed 2010 vote – sparse. That year, almost as many people voted in the judicial retention ballot as did the gubernatorial ballot.

In 2010, voters in only 10 Iowa counties – and in former Chief Justice Marsha Ternus’s case, nine – voted to  retain the justices. Those counties were Black Hawk ( Cedar Falls Patch), Clinton, Jefferson, Johnson (Iowa City Patch), Linn ( Marion Patch), Muscatine, Polk ( West Des Moines PatchUrbandale Patch, Johnston Patch and  Ankeny Patch), Scott, Story ( Ames Patch) and Winneshiek.

Voters in Scott County voted to retain Baker and Streit, but not Ternus.

Here’s how it worked out in the 2010 retention vote:
Chief Justice Marsha Ternus: 443,451 yes, 541,585 no
Justice David Baker: 451,359 yes, 532,805 no
Justice Michael Streit: 448,758 yes, 534,902

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