The Iowa Supreme Court chamber in the Iowa Judicial Building on Feb. 22, 2023. (Photo by Kathie Obradovich/Iowa Capital Dispatch)
As Iowans flip to the back of their ballot in the 2024 general election, they’ll have the option to weigh in on government officials who do not hold elected office – judges.
In the Nov. 5 election, Iowa voters will decide on whether nearly 70 judges will stay in their positions. Those up for the retention vote include Iowa Supreme Court Justice David May, four Iowa Courts of Appeals judges and 64 Iowa District Court judges.
Guy Cook with the Iowa State Bar Association said al though judicial retention votes are conducted during elections, the process is not meant to be a political process, but a way to allow the public a means to address instances of judicial corruption or other problems among judges.
The ISBA releases a “Judicial Performance Review” ahead of each election, rating judges on their performance through reviews from attorneys, association members, who have had professional interactions with these judges. Cook said that following the review process, the ISBA believes all judges on the ballot should be retained.
He said that the ISBA and others are involved in trying to educate voters ahead of the election that they should be evaluating judges and justices based on their professional abilities.
“Why it’s a little bit counterintuitive for some people is, it’s really not a vote on whether you like a decision or decisions of a judge,” Cook said. “It was never designed to be a referendum on a particular opinion. It’s really a question of – does the judge or justice have the same merit that they had when they were put on the bench? Are they following their code of conduct? Have they engaged in any misconduct? Are they worthy of retention by way of the job that they’re doing?”
Historically, the answer to these questions have been yes, Cook said – there have been very few judges removed through the retention process since its implementation in 1962, when Iowa moved from a judicial election to appointment system.
The highest profile outlier to this trend was in 2010, when former Iowa Chief Justice Marsha Ternus and Justices David Baker and Michael Streit were removed from the state Supreme Court through the retention vote. At the time, The Family Leader, a prominent conservative Christian organization, led a campaign to remove the three justices on that year’s ballot because of their votes in a 2009 unanimous decision to legalize same-sex marriage in Iowa.
Cook said he understands people may be frustrated with a court decision, but voting out a judge is not the best way to seek change.
“The better course, in a perfect world, would be to organize and seek to remove those persons in the legislature who passed the law, or seek to amend the Constitution, which, of course, there is a process for, or to organize, should the governor run for reelection, organize to see that someone is elected to that position who takes a different view on judicial philosophy,” Cook said. “… I can appreciate the perspective of those who say I want to send a message, but by the same token, it’s a message that achieves nothing and it tears away judicial independence.”
Since the 1962 change, Iowa judges are appointed, rather than elected, by the governor, who chooses the candidate from a pool made by either the state Judicial Nominating Commission or district nominating commissions.
This means that if a judge is ousted during the judicial retention process, their successor would be appointed by Republican Gov. Kim Reynolds, who may choose someone with a similar approach to Iowa law.
Cook said the judicial retention process was put in place to ensure that there was still a way to address instances of misconduct or poor performance.
“People can vote however they their conscience directs them to vote, but to vote no on a judge or justice over one or two particular decisions has a corrosive effect on the independence of the judiciary and the rule of law, which benefits all of us,” Cook said. “We certainly don’t want judges who are not following the law, who are not doing their best to apply the facts to the law, but rather are looking over their shoulder – ‘Well, if I rule what I think the law requires, will I get voted out? Should I make my decisions based on polling or what the public thinks is the right answer, as opposed to what the law calls for?’”