Política de Privacidad
The following articles were written by Polk County Democratic Party Chair Bill Brauch for our party newsletter.
2024 Judicial Candidates
When I first moved to Iowa in the early 1980’s to begin law school at the University of Iowa, I was delighted to learn several things about our fair state, including the incredibly fair and even- handed way that Iowa handled both legislative redistricting and judicial nominations and retention. I grew up in Wisconsin, where judges at every level are elected. Even as a teenager, I felt it odd to see pickup trucks festooned with signs for county judge candidates in the middle of a Fourth of July parade. I wondered how I would decide who to vote for in judicial races when I became old enough to vote. Iowa’s system seemed so much better. A commission made up of lawyers and non-lawyers, mostly elected by lawyers, would interview candidates for judicial appointment and send a list of potential nominees to the governor to choose one for appointment. Those appointed to be judges would be up for public retention votes every so many years on a rotating basis.
The system seemed to work really well. Before the election, the Iowa State Bar Association would share information about lawyers’ views as to the qualities of the judges on the ballot, including their professional competence, knowledge and application of the law, perception of factual issues, attentiveness to arguments and testimony, and management and control of the courtroom. In the many years I’ve been voting in Iowa, I can only recall one time when I voted not to retain a judge. This was a district court judge who, based on my own observations, did not have the requisite skills and courtroom demeanor to continue being a judge. A majority of voters agreed, and the judge was removed from office.
Of course, in recent years Iowa Republicans, (who cannot seem to leave any successful, even-handed Iowa approach alone, e.g. public education and the AEA’s), have changed the system to give the governor an advantage on the nominating commission through appointment of the majority of its members. In other words, they’ve politicized the process, thereby damaging its reputation for fairness and equity.
That brings us to this year’s ballot, and the judges up for retention. I don’t know of any reason not to vote to retain the district court and court of appeals judges listed on this year’s ballot. Several of them I know to be outstanding judges. I will vote to retain them. However, I am going to vote not to retain Supreme Court Justice David May. From the opinions I’ve read he appears to be a judge who applies the concept known as “Originalism” in analyzing disputes before the court. I refer to it as a “concept” rather than a “legal theory” as its very creation was a political act and its application in appellate decisions across this country has shown that it is being used by the judiciary to impose partisan political outcomes. We’ve seen it, time and time again, particularly at the United States Supreme Court in cases in which fundamental rights and freedoms were at stake. Of course, its most notorious recent manifestation has been the overturning of Roe v. Wade, but its application is rampant in recent Supreme Court opinions involving the Second Amendment, religious liberty, regulation of corporate polluters and others. Unfortunately, this plague is present in our state courts as well.
“Originalism” is the notion that we should interpret the constitution, at both the federal and state level, limited to what was intended by the drafters of the Constitutional language or by what was the most common understanding through some unstated percentage of our nation’s or state’s history. It places judges in the position of having to be historians and results in outcomes determined through discerning the intent of men who, in the case of the U.S. Constitution, were born 300 years ago. I don’t know about you, but I think the world has changed quite a bit since the Constitution was adopted in 1787. I absolutely revere the founders of this nation. They put their lives on the line to create the world’s first and most enduring democracy. We should honor them. But compared to what we know today, their understanding of science and of human skills and possibilities was extremely limited. However, I am certain that they knew science and human understanding would continue to grow past their lives and it is my guess that men such as James Madison, John Adams, George Washington and Thomas Jefferson would be heartbroken to learn that in 2024 we define our understanding of the meaning of liberty based upon their now antiquated understanding.
The creation of the concept of “Originalism” was initiated in the early 1970’s by Robert Bork, who you may recall lost his bid for a seat on the Supreme Court when the Senate voted not to confirm him after his nomination by President Reagan. He and other conservative legal scholars thought the Supreme Court had been overstepping its bounds in its decisions in the 1950’s and 1960’s expanding personal liberty. He wanted courts to limit their analyses to the words in the founding documents, as the drafter’s intended them at the time. Looking at the intent of the drafters, and at history, should be the beginning of the analysis, not its be-all and end-all. After all, James Madison never heard of the telegraph, much less the telephone, the Internet, or TikTok for that matter.
That brings us to Justice May. The opinions he has written or joined show that he is a practitioner of this political form of analysis. He was one of the four justices who upheld Iowa’s 6-week abortion ban earlier this year in a narrow, 4-3 decision. Also earlier this year he relied on an “Originalism” analysis in holding that the right of confrontation means that government cannot act to shield child victims of physical abuse from having to testify in court in the presence of the defendant – the person who was being criminally prosecuted for allegedly abusing them, even when experts testified the children would be further traumatized by having to testify in the defendant’s presence. While I agree we need a right to confront our accusers in criminal trials, this ruling is outrageous and inconsistent with modern knowledge and understanding of the needs of children subjected to abuse Justice May referenced how children were viewed in the mid-1800’s in finding that society, then, did not wish to relieve them of this burden. For gosh sakes, our nation, in fact this world, has so evolved since then in its view and consideration for the needs of children – well past the days when they were viewed as little, juvenile laborers.
In the abortion case, the majority opinion he joined held that the right to abortion is not a fundamental right in Iowa as, for most of its history, Iowa has not permitted it. But until just a few weeks ago, Iowa had permitted abortion for over 51 years! That’s about 30% of the time Iowa has been a state, and it’s the most recent 51 years. I would ask Justice May – so, what percentage of our history would tip the scales? How do we know what percentage you would apply in a given case? Does it differ, case to case? Of course, this is all rather ridiculous and wrong. Another Republican appointee to the Iowa Supreme Court, the late Chief Justice Mark Cady, wrote in his 2018 majority opinion in which the Court found the right to decide whether to continue or terminate a pregnancy to be a fundamental right, citing language from earlier Iowa cases, “The Iowa Constitution is a living and vital instrument. Unlike statutes, our constitution sets broad general principles. Its very purpose is to endure for a long time, and to meet conditions neither contemplated nor foreseeable at the time of its adoption.”
As for me, I will no longer vote to retain any judge who I learn is applying “Originalism” in analyzing cases. It is a political tool and has no place in our judicial system as a sole determinant of anything. It is neither a fair, nor a just means of determining our rights and liberties, which we Iowans prize and strive to maintain.
2024 Constitutional Amendments
Democrats have contacted the county party seeking guidance on how to vote on the two Iowa Constitution Amendments and the judges on the Nov. 5 general election ballot. Neither the Polk County Democrats nor the state party will take official positions on those questions. But, below I describe how I plan to vote, and why, on the constitutional amendments. By the way, if you would like to go to a great website with information about these proposed constitutional amendments, Ballotpedia has great information. I will address the judicial retention votes in next week’s newsletter.
Constitutional Amendment 1: Prohibits the state and local governments from allowing noncitizens to vote and allows 17-year-olds who will be 18 by the general election to vote in primary elections.
I am going to vote “No” on this amendment. I fully agree with the language about permitting 17 year-olds to vote on primary day if they will be 18 by the time of the general election. In fact, that is already Iowa law, by statute. This merely catches up the constitutional language with the status of the current law. You could argue that this is unnecessary for that reason. However, it makes sense to place that in the constitution as well.
But it is the language about non-citizens voting, even in local municipal and school board elections that I oppose and it is the reason I will be voting “No.” For over 100 years federal law has barred non-citizens from voting in federal elections. Iowa law currently bars non- citizens from voting in state and local elections. However, that language is not in the current constitution. Placing it in the constitution will bar future legislatures from amending state law to authorize non-citizens to vote in local elections. Iowans may very well want that right someday. This proposed constitutional amendment is driven by Republican lies about undocumented immigrants voting. That’s a bogus story they’ve been promoting for years. Some U.S. municipalities currently permit non-citizen residents to vote in local elections, though, of course, none in Iowa. Sweden, the Netherlands, and New Zealand have permitted non-citizens to vote for a number of years. Think about it – say you have a community where non-citizens make up as much as 25-30% of local residents. These folks are paying property taxes if they own their own homes, and they are definitely paying sales taxes and income taxes. They are sending their kids to local public schools. Maybe they’ve been there a long time. They have a stake in their local communities. The voters in that community may wish they could give them the vote in local elections. Yet, through this amendment, Iowa is telling that community that the legislature cannot authorize this, even if a strong majority of the members of the legislature would be in favor.
I don’t know of any Iowa communities that presently seek this right. But I don’t want our state to close the door on that possibility. This language is part and parcel of the Republicans “Big State Government” derecho of legislation from on high, limiting Iowans’ freedom to govern their municipalities as they see fit. The examples of the R’s running roughshod over local rights in the past decade is long and disheartening, from barring local minimum wage hikes above the state limit or imposing stricter local gun regulations, from barring them from setting minimum distances from town for animal confinement facilities, to telling school districts what they can and cannot do as to library books and public health measures, and others. The Republican “We Know Better than You Do” approach to governance is autocratic and anti-democratic. This amendment is just another example. Again, this is my personal view. It is not an official statement or position of the Polk County Democrats and our County Party Platform adopted earlier this year does not address the issue. My “No” vote is my statement that we need to have the ability to empower our citizens to make decisions at the local level without the heavy hand of state government standing in their way and that empowering human beings who happen to live there who have a great stake in their communities to vote in local elections should not be barred by our state Constitution. You should vote how you see fit on this amendment.
Constitutional Amendment 2: Provides that if the governor dies, resigns, or is removed from office, the lieutenant governor would assume the office of governor for the remainder of the term, thereby creating a vacancy in the office of lieutenant governor, which could be filled by the governor by appointment.
I am also going to vote “No” on this amendment. While we face that situation currently with the resignation of Lt. Gov. Gregg, this amendment was driven by what happened when Gov. Branstad became U.S. Ambassador to China and Kim Reynolds succeeded to the governorship. At the time she attempted to appoint Adam Gregg Lieutenant Governor. However, Attorney General Tom Miller issued an opinion to the effect that the Governor lacked that authority and that Reynolds would have to wait until the next general election to choose a running mate who would fill the position of Lt. Governor should Reynolds win that election. In response, Reynolds appointed Gregg as “Acting” Lt. Governor and treated him as Lt. Governor, except he was not in the line of succession if she had been unable to continue as Governor. Of course, unfortunately, she won the next general election and Gregg became Lt. Governor upon his swearing in as such.
I am voting “no” because this gives too much authority to the Governor. Current law does not authorize the parties’ gubernatorial candidates to nominate their running mates. Rather, their respective state conventions have the final word as Iowa Code section 43.123 provides that the parties nominate the Lt. Governor candidate at their state conventions. The state convention can reject the gubernatorial candidate’s nominee for Lt. Governor, and they may have good reasons for doing so! There is no reason a similar requirement couldn’t apply to filling an open Lt. Gov. position – the constitution could require the party in question to reconvene their state convention to nominate a person for the position. Why does the state convention get final word in a regular election, but, under this amendment, not in an interim situation? It would not take much to schedule the reconvening of a state convention. It might even be possible to do it online. In addition, the bottom line in all of this is that the people decide their Lt. Governor in a general election when they vote for Governor. This amendment takes that vote away from the people and places it in the hands of the Governor. It gives the Governor too much power for my taste. It’s undemocratic. I’m voting “No.”
Again, I’m not urging you to vote one way or the other. How you vote is up to you. But I thought I’d share this information in an attempt to be helpful. A reminder - I will write about the Judicial retention elections in next week’s newsletter.