published Sunday, August 3rd, 2014

Campaign to topple Tennessee Supreme Court justices faces tough odds

The heated, expensive campaign against three sitting Tennessee Supreme Court justices has only gotten hotter as Election Day approaches. But experts who've studied the data and politics in retention elections across the nation expect that if recent history is any indicator, opponents will have a tough time unseating the three.

Conservative groups led by Tennessee Lt. Gov. Ron Ramsey have sent mailers, run TV ads, spoken across the state and given voters a video tutorial on the lengthy ballot with the goal of unseating justices Connie Clark, Gary Wade and Sharon Lee, all appointees of former Democratic Gov. Phil Bredesen.

But research going back to the 1960s shows that nationwide, judges in retention elections have a wide margin of success and opponents will have to persuade around 20 to 30 percent more voters to cast ballots against retention.

That's only happened a handful of times in recent decades, according to research published by professor Larry Aspin of Bradley University in Peoria, Ill.

In the dozen states that have retention elections, support for sitting judges has fluctuated from the high 60 percent range to the mid-70s, according to Aspin's research.

Fluctuations of 5 percentage points or more are out of the ordinary, and support would have to fall below 50 percent to dump a judge.

In 2010, only six judges in 482 retention elections across the country were not retained. That was one of the higher numbers since 1990, when 10 were defeated.

"Getting right down to the elections themselves, not much has really changed," Aspin said.

Another factor affecting retention elections, he said, is how the opposition mounts its attack.

In states where judges faced opposition campaigns, opponents who had a well-organized campaign and focused on a specific ruling or issue had more success in unseating the targets, according to the research.

Three Iowa justices ousted in 2010 had ruled in favor of same-sex marriage, which angered conservative voters.

The issue resonated enough with voters to get them to the polls and to care about the ill-understood public office of judge, said Bill Raferty, an analyst with the National Center for State Courts.

But in that retention election the three sitting justices chose not to actively campaign on their own behalf.

In the next retention election in Iowa, the remaining challenged justice raised money and campaigned. He held his seat. A similar scenario unfolded in Florida in 2012.

Over the past few months Ramsey's supporters, the Tennessee Forum and the State Government Leadership Foundation have used labels such as "liberal" and "soft on crime" for the three; others say they support Obamacare.

The Obamacare complaint is actually related to Tennessee Attorney General Bob Cooper refusing to join the multistate lawsuit against the health care mandate. The justices have not ruled on issues related to Obamacare but did appoint Cooper in 2008.

That points to another GOP goal -- to get a Republican attorney general and take the appointment power from the court in the future. With replacement justices appointed by Republican Gov. Bill Haslam and an all-Republican court, the Legislature, governor's office, Supreme Court and attorney general's office all could be held by one party.

Tennessee Forum head Susan Kaestner, asked by the Times Free Press about specific rulings, downplayed criticisms of the judges' records. She said her focus is on the "big picture" and said that a look will show the justices are out of step with the heavily Republican Volunteer State.

Clark, Wade and Lee have followed the Florida and Iowa examples by traveling across Tennessee to explain why they should be retained and counter opposition.

Wade will be at the Hamilton County Pachyderm Club at noon Monday. State Sen. Mike Bell is speaking against Wade and retention at the same event.

Attention to formerly yawn-inducing retention elections isn't coincidence. Recent years have seen much more money and participation in campaigns to oust judges, experts said.

The most recent campaign finance reports show that supporters of the justices have spent $316,000 on TV ads alone. Opponents have paid out a combined $254,890 on their own TV ads, according to Times Free Press archives.

"It was just a matter of time," said Matt Streb, a political science professor at Northern Illinois University. "Groups realized it was far easier to influence the shape of a court than it is to influence the shape of a legislature."

In Tennessee's five-member Supreme Court, knocking off one or two judges can make a huge difference in court decisions that influence statewide legal precedents, Streb said.

Contact staff writer Todd South at tsouth@timesfreepress.com or 423-757-6347. Follow him on Twitter @tsouthCTFP.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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