Election 2012: From Same-Sex Marriage to Politics in the Courtroom, A Lot at Stake in Wiggins Vote

As Iowans head to the polls on Tuesday, they could be part of a defining stand for or against gay marriage in America and politics in the judiciary.

One of Iowa’s biggest races is an historically procedural item on the back of the ballot. Voters will be asked, "yes or no," if Iowa Supreme Court Justice David Wiggins should remain in office.

“I'd say that the Wiggins' vote matters to all citizens of the state, regardless of sexual orientation,” said Maeve Clarke, an Iowa City woman who married her longtime partner the day after Iowa began recognizing same-sex marriage in 2009. “It is a matter of keeping the State's Supreme Court fair and impartial - making sure politics plays no part in decisions that come before the court.”

Wiggins was part of the controversial 2009 Iowa Supreme Court decision that, in effect, made Iowa the third state to recognize same-sex marriage and gave rise to an army of traditional marriage activists.

“But obviously, this vote has particular relevance to same-sex couples,” she continued. “Those opposed to marriage equality within our state and the many from outside our state are using this judicial retention vote to try to enforce their particular religious and moral views on our courts.”

Experts locally and nationally are watching Wiggins’ fate. Some say this election is a barometer for attitudes about gay marriage, not only in Iowa, but the nation. And, if Wiggins loses, it could push judges more squarely into politics.

“The longstanding process before 2010 was retention was basically automatic,” University of Iowa law professor Todd Pettys said. That year, Iowans ousted three of Wiggins’ fellow Iowa Supreme Court justices, who were part of the unanimous ruling that banning gay marriage is unconstitutional. “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?”

A symbolic vote through Wiggins

This particular ballot item has little at all to do with Wiggins, who was voted one of the least popular judges in Iowa by peers and, following judicial tradition, hasn’t even campaigned.

For most, Wiggins is a symbol.

"It's not all about marriage," Bob Vander Plaats of The Family Leader, said earlier this year while on tour urging Iowans to vote Wiggins out. "If they will redefine the institution of marriage, they won't blink an eye when they take away your private property. They won't blink an eye when they take away your religious freedom. When they tell you how to educate your kids. When they take away your second amendment rights."

Both sides are framing the vote as an opportunity to remove politics from the courts. Vander Plaats and others say judges’ politics will not be tolerated, while Wiggins’ supporters say a pro-Wiggins vote will protect judges from external political pressure, like Vander Plaats.

“If they win, it feeds into the narrative that has been building that they can continue to punish the judiciary for interpreting the Constitution correctly and rewrite it as they see fit,” said Zach Wahls, an Iowa City man raised by lesbian mothers and a leading voice for the pro-same-sex marriage movement.

He calls Nov. 6 an opportunity to “stop Mr. Vander Plaats and his cadre in its tracks.”

A new way of doing business: Judges as politicians

After the 2009 decision, opponents of same-sex marriage responded with a vengeance, launching a campaign to oust three of the judges on the seven-member bench.

Iowans have had the ability to vote to retain judges since 1962, but 2010 was the first time a concerted campaign was made against retaining judges. The race brought in $1.4 million, much of it out-of-state money to oust the judges. The justices and their supporters, caught by surprise, raised little resistance. 55 percent of voters chose not to retain the judges.

Pettys said one such vote could be an anomaly, but two sets a pattern. If it happens again, it would encourage justices to act as politicians. Some feel that has already begun.

“It is also a great example of how judicial retention has become a politicized issue and that justices have to campaign just as if they were running for the legislature,” Iowa State University political science professor Steffen Schmidt said. “This year, of course, there is a "Vote NO!" bus crossing Iowa and also a "Vote Yes!" to retain him. That's a huge change from past years and proves that we are in a new era of judicial politics.”

A bellwether from the Heartland on same-sex marriage

The Wiggins vote may serve as a bellwether of public opinion on same-sex marriage, not just in Iowa, but the nation.

“The reality is, if you're living in Alabama or South Carolina, you don't look to California or New York as your yardstick. But you do look to Iowa. If it can happen here, it can happen in those other places. That's part of the importance,” Donna Red Wing, executive director of One Iowa, a gay rights advocacy group, told the Associated Press last month.

Iowa’s vote on Election Day will be looked at alongside ballot initiatives for gay marriage in Minnesota, Maine, Maryland and Washington, D.C.

A stand by opponents on Election Day would build momentum here in Iowa, and may signal a turning point in the movement nationally. Red Wing called the vote in Iowa along with the four other states a “watershed” moment for gay marriage in America.

Shifting opinions on gay marriage

In Iowa, circumstances are slightly different now that gay marriage is the norm, and opposition appears to be relaxing.

A 2009 Des Moines Register poll found 26 percent of Iowans favored the court’s ruling legalizing same-sex marriage, 43 percent opposed it and 31 percent didn’t care much or were not sure. Two years later, the Register poll found 30 percent of Iowans favored the decision, 36 percent opposed it and 34 percent weren’t sure or didn’t care much.

In 2009, pollsters asked about a constitutional ban on same sex marriage. Forty-one percent said they would vote for a ban on same-sex marriage, and 40 percent say they would vote to allow same-sex marriage to continue. In 2011, 56 percent of those polled strongly opposed a ban, while 38 percent would support it.

Certainly, the landscape in 2012 appears much more favorable for Wiggins than his colleagues in 2010.

Last month, University of Iowa’s Hawkeye Poll showed that 53 percent plan to vote to retain Wiggins, while 30 percent say they’ll vote against him.

The money race this time around is also much more subdued. Advocates to oust the three judges in 2010 spent around $1 million, compared to about $400,000 spent by groups supporting retention, according to the Des Moines Register. This time around, Wiggins’ opponents have spent $248,483, while his supporters have spent $157,987, according to the newspaper.

Wild card is Iowa Senate

While a Wiggins win wouldn’t be ideal for those hoping to rid Iowa of gay marriage, a wild card could be what happens in Iowa Senate races.  

Last year, an attempt to get a gay marriage amendment before voters died in the Democratic-controlled Iowa Senate after being approved by the Republican-controlled House. However, Republicans, including Gov. Terry Branstad, have said they expect the issue to come up again if Republicans seize control of the Iowa Senate on Tuesday. Democrats currently hold only a one-seat advantage.

“My sense, and I don’t have a vote on this…because I don’t serve in the Senate or the House, but my sense is that the Republicans will give the opportunity to give the people a vote on this important issue,” Branstad said at his recent weekly news conference, according to the Register.

Branstad said it is what Iowans want, although the soonest a referendum could potentially make it to voters would be 2015.

“Judicial retention is a signature issue for conservative Republicans,” Schmidt said. “It matters a lot, because this year it is a measure of whether the social conservatives still have a lot of clout or if it has declined.”

Iowans will let the nation know what they think on Tuesday.