Iowa Supreme Court Justice David May is the only Iowa Supreme Court justice up for retention in the 2024 election.
In a retention vote, there is no other candidate. Voters simply indicate on the back of their ballot whether or not they want the justice to be retained — or kept in office. Usually, these retention votes pass with little fanfare. This year is, perhaps, a bit different.
This summer, the Iowa Supreme Court ruled that a law banning most abortions after about six weeks of pregnancy can go into effect. May was one of the justices who voted for this decision.
The choice not to retain May is one way Iowans may express their opposition to the new restrictions on abortion. A recent Des Moines Register/Mediacom Iowa Poll found that 59% of Iowans disapprove of the abortion ban. A group called Iowans for Reproductive Freedom began encouraging voters not to retain May.
But there are heated debates about what should inform a voter’s choice on retention, as well as the purpose of a judicial retention election. Some say that it’s a chance to hold justices accountable for their decisions or interpretations of the Iowa Constitution, while others argue that voting based on an individual's disagreement with a ruling threatens judicial independence.
Ben Kieffer invited experts with differing opinions on a recent episode of River to River.
Debating the role of retention
Scott Peters, a professor and the head of the University of Northern Iowa’s political science department, said he doesn’t believe the common perception that the way the judiciary handles disputes of the laws can be separate from politics.
“As a political scientist, that just doesn't hold,” Peters said. “Courts are empowered by the state to give authoritative renderings about what laws mean, and their decisions are backed by the power of the state. Everything courts do is political.”
Peter said the members of the Supreme Court make value judgements based on a combination of traditional law and culture, readings in history and personal ideology.
“All of those things are a grab bag, and it gets filtered through the judge in their approach to their job, their training — but yes, also partly their political values and their opinions,” Peters said. “...I understand the impetus to deny that judges are political, but I think that by doing that, we make our debates about the role of courts and the role of judges overly simplistic.”
And if politics is already involved in the process, Peters said, then the retention decision is where voters get to weigh in, meaning if voters are unhappy with a decision a justice made, that could motivate them to choose not to retain the justice on the court.
“Voters need to decide what and how they want to hold people accountable,” Peters said.
Guy Cook, the former president of the Iowa State Bar Association and a double board-certified trial lawyer, disagreed with Peter's analysis. He argues that justices should not be punished by voters for one decision they make, and that to do so would undermine judicial independence.
“The retention election is not a referendum on a particular decision,” Cook said. “We don't have that process in Iowa. It's a question of whether the judge is doing his job. Is he following the code of conduct? Has he engaged in misconduct or not?”
He said voters should look at the Iowa State Bar Association’s review of judges to inform their vote.
Cook said these retention votes are different from elections for the Legislature, Congress or governor, because there is no other candidate on the ballot. The vote should be about merit and if they are doing their job, he said.
If voters are unhappy with the abortion ruling, Cook said there is other political action to take.
“The remedy is to vote against those legislators that you disagree with who passed this legislation, or if the governor runs through reelection, to vote against the governor who set forth the special session that led to this law,” he said. “That's where the focus should be. The energies of those who dislike this ruling should be focused at changing the ruling and seeking the remedies in that way, as opposed to corrupting our third branch of government that must be independent to give all of us a fair shake.”
A 2010 campaign for the back of the ballot
Several election cycles ago, Iowa Supreme Court justices fell under the scrutiny of the voters for the unanimous Varnum v. Brien decision in 2009 that legalized same-sex marriage in the state.
Conservatives, led by The Family Leader CEO Bob Vander Plaats, organized a campaign urging voters to turn over their ballots and vote against the three judges up for retention that year.
“If the Iowa Supreme Court will do this to marriage, every one of our freedoms, including gun rights and private property, is in danger of being usurped by activist judges who are unelected officials,” Vander Plaats said at the time, according to a 2010 NPR article. “Most Americans believe that government is out of control. Now is the time to take a stand against the radical judicial activism of the Iowa Supreme Court."
Former Chief Justice Marsha Ternus and Justices David Baker and Michael Streit were all voted off the bench.
“I find the notion that it hasn't been politicized laughable, because to me, it has been absolutely tampered with politically,” said Rekha Basu, author of Finding Her Voice and former Des Moines Register columnist. “Think about the fact that all seven current justices on the Supreme Court are Republican appointees.”
Basu said in addition to the abortion vote, May writing the majority decision in a case that ruled children testifying against abusers must do so in the same room as the adults they are accusing will also influence her vote. Iowa Attorney General Brenna Bird is currently working on a constitutional amendment to reverse the ruling.
“The governor said that May stood out for his experience, his approach to interpretation and his commitment to judicial restraint, when I think his rulings have been anything but restrained,” Basu said.
How Iowa Supreme Court nominations work
If May is ousted, Gov. Kim Reynolds will be tasked with appointing another justice.
Iowa Supreme Court candidates are nominated by a 17-member panel made up of attorneys and governor appointees. Reynolds controls a majority of the commission, with nine of her appointees and the other eight members selected by attorneys.
Previously, the commission was evenly split with eight gubernatorial nominees and eight attorneys, but in 2019 Reynolds signed a law changing the judicial selection process.
To hear this conversation, listen to River to River, hosted by Ben Kieffer. Caitlin Troutman produced this episode.