Election Day 2010 brought a new
round of special interest money, nasty ads and wedge issue politics into
America's courtrooms, breaking several spending records and spreading
costly, ideological hardball campaigns into new states.The roar of this
year's national politics-which favored populists and partisans, and
tilted against incumbents and the establishment-played out in judicial
elections and referenda in a number of states.
In Michigan, Supreme Court
candidates were vastly outspent by political parties and an out-of-state
group in a TV ad war whose cost was estimated at $5 million to $8
million. In Alabama, combined spending exceeded $3.2 million. Election
costs remained modest in North Carolina, which offers public financing
to qualifying appellate court candidates.
In Iowa, three Supreme Court justices were ousted after out-of-state
interest groups spent nearly $700,000 to unseat them over their votes in
a 2009 gay marriage case. But organized efforts to unseat high court
justices failed in Illinois, Colorado, Alaska, Kansas and Florida.
Non-candidate groups spent heavily on TV ads in Michigan and Ohio, while
Iowa and Illinois set records for the most expensive retention
elections ever in their states.
As they have done several times over the last decade, voters rejected
efforts to change judicial selection systems.In Nevada, Question 1,
which would have replaced competitive elections with judicial
appointments and retention contests, was defeated.But in Kansas, voters
in District 1 also defeated efforts to scrap a merit selection system
and switch to competitive contests.
"Pressure on impartial justice is growing," said Bert Brandenburg,
executive director of the Justice at Stake Campaign."Judges are facing
more demands to be accountable to interest groups and political
campaigns instead of the law and the constitution."
Through Monday, Nov. 1, 2010, slightly more than $12 million was spent
nationally on TV air time this year in state supreme court elections.Of
that, nearly $5.1 million - 42% of total spending for the year - was
spent in the week leading up to the election, between Oct. 26 and Nov.
1.
Including $4.6 million spent on TV ads in 2009, the current total for
the 2009-2010 election cycle is approximately $16.6 million, about the
same amount spent on judicial television advertising in the last
non-presidential election cycle, 2005-2006.
"As in past years, judicial election campaigns featured substantial
numbers of hard-hitting, mud-slinging attack ads - many of which were as
nasty as those seen in any political campaigns," said Adam Skaggs,
Counsel at the Brennan Center for Justice at NYU School of Law.
Final estimates ofTV ad spending, as recorded by TNS Media
Intelligence/CMAG, are expected within a few days. Complete candidate
fundraising data often are not fully available until weeks, and in some
cases months, after the elections, meaning that total campaign cost
totals tend to rise with time.
Three in four Americans believe that the special-interest money needed
to finance such elections influences court decisions. From 2000 through
2009, fundraising by high-court candidates surged to $206.9 million,
more than double the $83.3 million raised in the 1990s.
This year, heavy spending and angry TV ads spread to several states
holding retention elections, which in 2000-2009 had accounted for barely
1 percent of spending in high court races. This year, high-court
retention elections in Illinois, Iowa, Colorado and Alaska resulted in
about $4.6 million in total costs-more than twice the $2.2 million
raised for all retention elections nationally in 2000-2009.
In most of the 15 states where 37 justices stood in retention elections,
however, campaign expenditures were far lower than in competitive
election states.
Overall, 33 states held some type of election. In addition to the 15
states holding one-candidate retention elections, in which incumbents
needed a "yes" vote to stay on the bench, 11 states held competitive
elections for 18 seats. In seven other states, there were no challengers
in elections that technically were competitive, granting automatic
victory to the candidate on the ballot.
The following is a round-up of major trends in the 2009-10 judicial
election campaign season, as identified by the Justice at Stake Campaign
and the Brennan Center for Justice. Further information is available at
the Judicial Elections 2010 web site.
TV Ad Data
Television ads ran this year in fourteen states with elections for the
state supreme court:Alabama, Alaska, Arkansas, Colorado, Idaho,
Illinois, Iowa, Michigan, Montana, North Carolina, Ohio, Texas,
Washington and West Virginia.
Michigan saw the highest overall spending on supreme court TV ads, with
about $5.1 million spent on airtime, according to TNS Media
Intelligence/CMAG; Ohio is second with more than $1.9 million in airtime
spending.In both of these states, four candidates competed for two
Supreme Court seats.(An additional Ohio Justice, Paul Pfeifer, ran
unopposed in a vote in which no TV advertising has aired.)
The highest level of spending in a single-candidate retention race was
in Illinois, where incumbent Justice Thomas Kilbride spent more than
$1.6 millon on TV airtime through Nov. 1.
For the year, spending on television advertising in supreme court races
was evenly split between judicial candidates and non-candidate
groups.Through Nov. 1, candidates spent more than $6.1 million on
television advertising, while non-candidate groups - including political
parties and special interests - accounted for 49% of all television
airtime, spending more than $5.9 million.
Four of the top five spenders on TV airtime in supreme court elections
are non-candidate groups.The Michigan Republican Party ranked first
overall in TV spending (just over $2 million).Kilbride ranked second
($1.6 million); the Michigan State Democratic Party ranked third ($1.4
million); the Partnership for Ohio's Future ranked fourth (about
$846,000); and the Law Enforcement Alliance of America, which spent more
than $780,000 in support of two Republican candidates for the Michigan
Supreme Court, ranked fifth.
"Many of the harshest ads were aired by political parties and special
interest groups, which accounted for about 49% of all spending on
television ads in state supreme court elections," Skaggs said.
Through Nov. 1, spending on TV airtime in states holding
single-candidate retention elections has totaled approximately $2.1
million - approximately 17.5% of all TV spending during that time.This
level of spending in retention contests is the greatest since the
Brennan Center for Justice began compiling judicial TV ad data in 2000.
Major states
Iowa
All three state Supreme Court justices appearing on a retention ballot
were voted out, following a withering attack on a unanimous 2009 ruling
that overturned a state law banning gay marriage. The margin of defeat
was similar in each case, with about 55 percent voting "no" on another
term. Robert Hanson, the Polk County trial judge who initially ruled in
favor of gay marriage, won his retention vote.
Out-of-state groups attacking the
high-court justices included the National Organization for Marriage, the
American Families Association, the Family Research Council, the
Campaign for Working Families and Citizens United. Along with in-state
groups, reported spending to oust the three justices was about $800,000.
Fair Courts for US, a group headed by former governor Robert Ray,
reported spending nearly $400,000 in support of retaining the justices,
raising total Iowa election costs to $1.2 million. More than half, about
$700,000, came from out of state.
Iowa's supreme court had not seen a contentious retention election
before this year. The election raised concerns that wedge issues could
make it more difficult for courts, in Iowa and elsewhere, to rule in
hot-button legal disputes.
"Under our constitutional system, courts are designed to be different
from the other branches of government," Brandenburg said. "If judges in
any state begin basing their decisions on political pressure and
campaign spending, instead of the facts and the law, everyone loses."
Nevada
Question 1 was put on the ballot after spending on Nevada high court
elections rose, and after a 2006 Los Angeles Times report unearthed
questionable fundraising practices by Las Vegas trial judges. But
voters, by a margin of about 58 to 42 percent, chose to keep their
current system of nonpartisan competitive elections.
The election continued a trend of states preserving their existing judicial selection system, whether elective or appointive.
"The politics of 2010 made it a difficult climate to ask voters to
change how they picked judges," said Bert Brandenburg, executive
director of the Justice at Stake Campaign. "And yet many voters remain
concerned about campaign cash in the courthouse."
Candidates for Nevada high court raised $9.8 million in 2000-2009, ranking the state eighth nationally.
Illinois
In one of the year's most extraordinary races, Justice Thomas L.
Kilbride reported raising more than $2.5 million, while the Illinois
Civil Justice League reported raising $648,000 to defeat him. Kilbride
retained his seat with 68 percent of voters favoring another term.
Although the campaign was prompted by a business ruling, in which the
Illinois court overturned legislative limits on medical malpractice
awards, the league focused on Kilbride's record in crime cases,
memorably running an ad in which actors playing felons savor their
violent crimes and say Kilbride took their side in court.
"In Illinois, special-interest money bought one of the most tasteless TV
ads ever appearedin a court election, while a sitting justice raised
millions of dollars from plaintiffs' lawyers and other parties who will
appear in court," Brandenburg said. "In 2004, Justice Lloyd Karmeier
called Illinois election spending 'obscene,' and it's hard to see how
this year did anything to restore public trust in that state's courts."
As in 2004, unions and plaintiffs' firms backed the Democrat. National
business groups, including the U.S. Chamber of Commerce, American
Justice Partnership, and the American Tort Reform Association, backed
the opposition campaign.
Michigan
Including TV, Michigan was the nation's most expensive judicial election state in 2010.
Non-candidate groups, led by the state Republican and Democratic parties
and the Virginia-based Law Enforcement Alliance of America, accounted
for more than 80 percent of all TV spending.
The Brennan Center for Justice, which tracks satellite captures of major
TV markets, has recorded $5.1 million in TV ads, as of Nov. 1. The
Michigan Campaign Finance Network, which checks TV station ad records,
placed the total at more than $8 million.
"Political parties and independent groups hijacked this election,
heavily outspending the candidates, and ads on both sides were riddled
with questionable claims," Brandenburg said. "Michigan remains a ground
zero for negative, costly court elections."
The two incumbents reported the highest campaign fundraising. About two
weeks before the election, Republican Robert Young, who won in a
landslide, reported raising $776,000, while Democrat Alton Davis, who
lost, raised $691,000. According to the most recent fundraising reports,
total fundraising among four candidates was just over $1.8 million.
Ohio, Alabama
Ohio and Alabama, the two most expensive states for the 2000-2009
decade, showed that high court campaigns can generate big numbers in
even relatively quiet years.
Of the $3.2 million reportedly raised by Alabama candidates through Oct. 19, Republicans outraised Democrats four to one.
In Ohio, the most recent reports showed that candidates had raised $2.7
million, with the Republicans outraising the Democrats. In addition, the
Chamber-related Partnership for Ohio's Future spent more than $840,000,
according to Brennan Center data.
Colorado, Alaska, Kansas, Florida
In Colorado and Alaska, campaigns opposing the retention of sitting
justices made substantial efforts but were unable to win. Alaska Justice
Dana Fabe got a 53 percent yes vote, despite a campaign by social
conservatives. Three Colorado justices survived a challenge by Clear the
Bench Colorado that focused on tax and spending issues.
"As in Iowa, 'Vote No' campaigns showed that judges in many states must
look with more concern than at the impact of single-interest protest
groups," said Skaggs. "More than ever, a single vote in a single legal
dispute might haunt judges at election time, and that will make it
harder for many to focus on facts and the law, instead of political
agendas."
Attempts by social conservatives in Kansas, and by Tea Party activists
in Florida, failed to gain significant traction on announced efforts to
unseat justices in their states.
