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Supreme Court election message was muddled
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A recent analysis of letters to the editor by a student at the University of Iowa College of Law suggests that voters in the 2010 Iowa Supreme Court retention election campaign were faced with an inconsistent message coming from those who favored keeping the justices on the bench.
Those advocating removal of the justices, however, generally spoke with a single, unified, and ultimately more persuasive voice throughout the campaign.
“The frame used by anti-retention advocates was much more unified and homogenous than the message framing of pro-retention advocates,” says Tyler Buller, a recent law school graduate whose analysis is published in the July 2012 edition of the Iowa Law Review.
Buller’s findings may have implications in this fall’s retention election campaign for Justice David Wiggins. His vote in favor of the unanimous 2009 Varnum decision legalizing same-sex marriage in Iowa led to the 2010 campaign that ousted three other Varnum supporting justices.
Buller analyzed how each side framed their issues by reviewing 331 letters to the editor and guest opinion pieces published in Iowa’s 25 largest daily newspapers between Aug. 1, 2010, and the Nov. 2, 2010, election date. Most newspapers use their opinion and op-ed pages as a voice of the people, Buller says, so an analysis of their content can be a useful tool to see how people are processing the messages of a campaign.
He found 58 of the letters took no position and were primarily a discussion of civics or history as it related to the retention campaign. But of the 78 letters expressly advocating anti-retention positions, 69 percent reflected a single message—that the justices violated their separation of powers in deciding the Varnum case. He says these letters tended to use such phrases as “legislated from the bench,” “activist judges,” or “usurped the will of the people.”
Opinion writers made other arguments as well—primarily that same-sex marriage was wrong on religious or moral grounds—but in much smaller numbers.
Meanwhile, those 83 opinion pieces that explicitly made the case for retention came at the issue from a multitude of directions; 39 percent argued that removing the justices would violate the spirit of the state’s merit-based judicial selection and retention system; 37 percent argued that the court was simply fulfilling its constitutional role as interpreter of the law and should not be punished, whether voters agreed with the decision or not; 15 percent argued the merits of the Varnum decision itself.
But, as Buller notes, no single frame accounted for more than 40 percent of pro-retention opinion, leading to fragmented and competing messages that failed to persuade voters.
“For advocates in favor of retaining judges following controversial decisions, the data support a conclusion that framing arguments about the role of the courts and the purpose of the merit-selection-retention system may not be enough to carry the day,” Buller wrote.
He notes that most of the anti-retention messaging during the campaign came from a single group, Iowans for Freedom, ensuring a continuity of message. But pro-retention messages were never able to speak with a common voice because so many groups spoke in the justices’ defense, including the Iowa State Bar Association, Fair Courts for Us, One Iowa, and Justice Not Politics, ensuring their message would be cluttered and fragmented.
He says his study suggests that the pro-retention message also needed to respond more forcefully to the anti-retention’s single-minded focus on the Varnum decision itself and their argument that it was wrongly decided. As it was, the argument was essentially ceded to retention opponents, reflected by the fact that only 15 percent of pro-retention opinions defended Varnum specifically.
Buller’s study, “Framing the Debate: Understanding Iowa’s 2010 Judicial-Retention Election Through a Content Analysis of Letters to the Editor,” is available via the Iowa Law Review website.