By Sandhya Somashekhar
Friday, August 27, 2010; A1
DES MOINES - Politics is as much a mainstay of the Iowa State Fair as the deep-fried food and the cows sculpted out of butter. But the crowds searching for a remote corner under the grandstand this week were not headed for one of the presidential hopefuls who routinely drop by. They were interested in a normally low-key judicial election that has suddenly taken center stage in the national fight over same-sex marriage.
Conservative activists are trying to oust three judges on the state Supreme Court whose unanimous ruling last year legalized same-sex unions. Their decision stunned opponents nationwide and delighted advocates who were eager for a victory in the heartland.
Now, conservatives are staging an unusual campaign that aims to defeat the judges in November.
"We need to vote them off the bench to send a message across Iowa that we, the people, still have the power," said Bob Vander Plaats, a Republican politician who is spearheading the campaign. "Not only will it send a message here in Iowa, but it will send a message in California, in Arizona and across the country that the courts have really taken on too much power."
The Iowa campaign is a new front in the fight over same-sex marriage, a hot-button issue this year after a federal judge in California invalidated Proposition 8, that state's voter-approved ban on same-sex unions. This week, former Republican National Committee chairman Ken Mehlman disclosed that he is gay and that he supports the federal court's action in California, a case that probably will go to the U.S. Supreme Court. His announcement further fueled the emotional debate over the topic, given his stature in the GOP and his earlier involvement in efforts to mobilize voters by exploiting opposition to same-sex marriage.
The effort in Iowa worries not only gay rights advocates but some legal experts who say it is wrong to punish judges for an unpopular decision. For critics of judicial elections, Iowa is offering a compelling example of the peril of subjecting judges to voters' whims.
Backers of the campaign say they are simply exercising their democratic right to rein in a judiciary that has overstepped its authority on same-sex marriage and other issues.
Vander Plaats, who lost in the June gubernatorial primary, announced this month the creation of Iowa for Freedom, which has rented office space and hired six full-time staff members. The group plans to act like any other political campaign, with mailers, phone calls and door-knocking, Vander Plaats said.
"We've got a campaign to get rid of these judges. What do you think of that?" he called out to a man in a gray trucker hat at the fair. The man jerked his thumb as if to say, "They're out of here."
For the judges, the question of how to respond is tricky. State law says they can campaign for retention, but how they go about it is extremely restricted by the judicial code of conduct. So far, none of the three judges has set up a campaign committee.
The movement supporting same-sex marriage has had its greatest success in the courtroom. Shortly before the ruling in California, a federal judge in Massachusetts invalidated the federal government's ban on recognizing same-sex unions.
Gay rights groups have been less successful in the voting booth; in every state where the issue has been put on the ballot, voters have agreed to define marriage as exclusively between a man and a woman.
Last year, the Iowa Supreme Court upheld a lower court's ruling that the state's law barring the recognition of same-sex marriage violated the Iowa Constitution. It was a major victory for gay rights groups, in part because Iowa is the only Midwestern state to allow same-sex couples to legally wed, joining four other states and the District of Columbia.
Supporters note that ousting the judges would not change the ruling. Nevertheless, they see it as a symbolic threat and have begun reaching out to voters.
"I think those opponents of same-sex marriage are going to grab hold of this and run with it, and it will be a big battle ax that they can shake around and say, 'You're next,' " said Carolyn S. Jenison, executive director of One Iowa, a gay advocacy group.
The controversy has drawn the attention of the Iowa Bar Association and legal experts around the country, including former U.S. Supreme Court justice Sandra Day O'Connor, who is slated to address the matter at an event here next month. O'Connor for years has spoken out against the judicial elections, arguing that they create "politicians in robes."
Critics of judicial elections have given Iowa high marks because judges are appointed through a merit-based system. By contrast, prospective judges in Alabama and some other states must raise money and campaign like political candidates.
In Iowa, judges are initially appointed by the governor from a pool of candidates rated on their merits by a recommended by committee. They are then reconfirmed by voters every few years - a provision included as a safety valve in case of gross misconduct.
Judges are rarely removed through retention elections. Four Iowa lower court judges, and no Supreme Court judges, have been ousted this way since the state adopted the system in 1962, experts said. A handful of judges in other states have lost their retention elections because of issue-based campaigns, notably over the death penalty.
Three of the court's seven judges are on the ballot this year: Chief Justice Marsha Ternus, Justice Michael Streit and Justice David Baker. They have not spoken out on behalf of themselves.
Former Supreme Court justice Mark McCormick has been an ardent defender.
"I've used the word 'vengeance' before in describing what this campaign is about," said McCormick, now a lawyer in private practice. "I think it is a challenge to judicial independence. There's an effort being made to succeed in turning out of office these three good judges for an inappropriate reason."
He and others worry it will politicize Iowa's court system and have a chilling effect on judges nationwide.
That does not bother suits Vander Plaats, who has tried to broaden his message beyond same-sex marriage and tap into a growing concern over judicial activism and government overreach.
At the state fair, this was the argument that most animated his supporters, who sought him out in a sweltering corner beneath the grandstand. This passionate backing worries the judges' defenders, because a small number of voters could make a difference in what is expected to be a low-turnout election.
Standing in front of a table set up by a conservative Christian group, he told Des Moines resident Charlie Romstad, 55, that gun rights, property rights and "any freedom you hold dear - if you let them do this, it's up for grabs." Romstad nodded vigorously. Romstad later said that he supports civil unions but opposes same-sex marriage and that he thinks ousting the judges would put the courts - and Iowa - in their place.
"It seems as though Iowa has this tendency to try to play with the big boys, show an example to the world like California or Texas," Romstad said. "I think that's what these judges tried to do with their opinion. But that's just not Iowa."