Retention Elections 2.010

Abstract

Counter-historically, the highest profile judicial election campaigns of the first judicial elections cycle following the Supreme Court's decision in Citizens United v. Federal Election Commission were retention and ballot measure, rather than contested elections. Retention elections, in which voters cast their ballots either in favor of returning the incumbent judge to office for another term or for her removal, were intended to balance the values of judicial impartiality and accountability to the public.

In Iowa, judicial retention elections-contests normally well beneath the radar even in Des Moines-became a national flashpoint for same sex marriage debates and, more to the point, for interest group spending in courts races. Also underscored by the Iowa judicial retention election was the prisoner's dilemma faced by judges who are targeted by big dollar campaigns. Faced with that dilemma, the Iowa Chief Justice and two Associate Justices did "not want to contribute to the politicization of the judiciary," and thus chose not to engage in fundraising. Realistically, that tactical decision, more than the Court's unanimous 2009 decision in favor of same sex marriage, cost them their seats on the bench.

Conversely, Illinois Chief Justice Thomas Kilbride faced a well-funded anti-retention effort-this one based on perceived anti-business rulings, but Kilbride aggressively raised more than $1 million from political parties, unions, and stakeholders before the bench, resulting in what the Chicago Tribune described as "a $3 million fight over a name most Illinoisans didn't even see on the ballot." Kilbride retained his seat.

This Article examines the dynamics driving these events, particularly in light of Citizens United's potential to open the financial floodgates in state court races that, in their contested (as opposed to retention) iterations over the past decade alone, have already become soaked in campaign cash. For judicial retention elections nationally, the opposition to retention in the 2010 Iowa and Illinois elections represents a bell that will never be un-rung.

Finally, this Article draws a lesson pertaining to Retention 2.010 from another significant event that occurred on Election Day, 2010. Despite a concerted campaign that drew heavily on the prestige of Justice Sandra Day O'Connor, Nevada voters rejected a proposal to abandon contested elections, becoming the latest occasion in the last quarter century in which voters around the country have - without exception - chosen to maintain contested elections.

Keywords: First Amendment, Due Process, Recusal, Judges, Judicial Elections, Retention, Gay Marriage, Judicial Independence, Campaign Finance, Republican Party of Minnesota v. White, Caperton v. Massey, state courts