motivated attacks.1 These attacks often force the judges to decide whether to mount a campaign to defend their own record. However, because of laws regulating judicial conduct, the judges are at a distinct disadvantage.1 Such was the case in 2010 when three Iowa Supreme Court justices lost their seats in retention elections after they struck down the state’s ban on same sex marriage.15 The state had never had a single dollar spent on retention elections until special interests groups spent over $1million to remove the justices from office.15 A campaign of television ads sponsored by the “Iowa for Freedom Coalition,” along with the “National Organization for Marriage” and the “Campaign for Working Families” proclaimed “some in the ruling class say it is wrong to hold Supreme Court justices accountable.”15 The narrator went on to ask voters to “hold these activist judges accountable” and vote “no” on the retention of the supreme court justices.1, 15 The 1986 Californian retention elections saw record expenditures of $10 million, ultimately leading to the defeat of three of the state’s high court members.2, 24 Studies also show that voters do not vote based on the merits of a particular judge’s competence, integrity, or legal ability, but rather based on the outcomes of particular cases. Such examples include the 1996 case of Tennessee Supreme Court Justice Penny White, who lost her seat after being attacked for being “procriminal” and “anti-death penalty” after she joined in an opinion re-sentencing a criminal defendant for committing a heinous crime.24 Other examples 72
include the retention election defeat of Florida Chief Justice Leander Shaw due to pressure from anti-abortion advocates, despite the fact the majority of those in the state’s legal community felt that he was a competent justice and had high ratings by the state bar.2 Retention elections also may disfavor incumbents. Due to the lack of filing deadlines in contested elections, opposition groups may launch attacks against a sitting judge shortly before an election, giving the judge little time to respond as seen in the 1996 defeat of Nebraska Supreme Court Justice David Lanphier in a campaign that began only two months prior to the election.2 In a contested election, the opposition is forced to explain their own position. However, in retention elections, the opposition can use manipulative tactics and label a judge based on only a handful of cases, while never having to explain their own position.2 Retention elections are often misunderstood. Voters often do not have adequate information about why the judge is up for retention, or even what retention elections are to begin with. One study in Florida revealed that voters believed that judges were up for retention elections only when they had done something wrong.2 Coupled with negative attack ads by interest groups, which have become more prevalent in recent retention elections, incumbent judges are at a distinct disadvantage.1 Recommendations for Reforming Merit Selection Judicial independence is important to societal benefits, such as civil liberties, the rule of law, minority rights and