CBA Record November-December 2023

supporting this hypothesis is that the use of ISBA ratings was actually slightly higher in 2022 within the city of Chicago than in the suburbs (9.6% to 8.4%). This shift in ratings use reinforces the evidence from the two progressive voters guides that smartphones have the potential to completely alter the information-gather ing of a large portion of the electorate. A New Normal Throughout the history of retention elec tions in the U.S. states that employ them, there have been examples of surges of interest in a particular retention ballot because of a controversial judge or case, or a highly visible news story. These surges have seen large increases in the numbers of voters who pay greater attention to the retention candidates and vote using an information source. Without excep tion, though, once the thing that caused the surge has faded into the background, voting behavior has reverted to its histori cal average. (A perfect example of this was the 1980s Operation Greylord investiga tion in Cook County.) However, while this was typical of retention voting in the past, indications are that it will no longer apply. Today, a voter need only pull a smartphone out of their pocket, even while voting, and per form a quick search to find some informa tion. The expansion of early voting and mail voting in recent years only makes it easier for voters to take the short time needed to do so. It still is too early to draw any firm conclusions, but we may be heading towards a new normal with more voters relying on mobile devices and internet searches to help navigate through the less familiar portions of their ballots. This does, however, raise a critical issue. Internet searches do not screen for quality or relevance. Given a choice between a rigorous, nonpartisan evalua tion of a judge’s performance, or alterna tive information that may be driven by politics, which will prevail? A Clear Lesson In considering this question, arguably the most relevant example comes from Iowa

in the 2010 general election. Three of Iowa’s seven supreme court justices were up for retention that year. In April of the previous year, the court had in a unanimous decision invalidated the state legislature’s attempt to deny marriage licenses to homosexual couples. Although the decision was not politically popular in that relatively conservative state, it did not at the time trigger widespread out rage or any organized call for the justices’ removal. Not until August of 2010, just three months before the election, did an anti-retention effort arise and organize in reaction to the decision. The accounts of what happened in the following three months can be summarized in two contrasting stories. On one hand, the rapid, massive expansion of the anti retention campaign was fueled by nearly $1 million from out-of-state religious con servative groups and by grassroots support from hundreds of pastors and conservative politicians across the state. On the other hand, the state’s legal community sup ported the justices’ retention based on the soundness of the gay marriage decision, the justices’ positive ratings in pre-election polling by the state bar association, and a desire to support judicial independence and the rule of law. But their attempts to counter the anti-retention effort were meager, ineffective, and plagued by mis judgments and mistakes. On election day the statewide electorate that in previous cycles had retained supreme court justices with approval rates in the mid-70s voted all three justices out of office with rates of between 45 and 46%. A key point is that among the 20 U.S. states that use retention elections for some, or all of their state court judges, Iowa prior to 2010 had arguably the calmest and least controversial history in its retention elections. So, in 2010, Iowa’s legal community was in essence caught off guard by a situation that it had no prior experience with. Another key point is that the Iowa anti-retention effort was not focused on the strength of its legal position in the gay marriage case or the justices’ individual performance in terms of merit. Rather, it

was a highly politicized send-a-message effort against “radical judicial activism” and claimed that the justices “opened the door to limitless control over our con stitution,” endangered gun rights and property rights, and “attempted to amend our constitution from the bench.” It even attacked Iowa’s judicial selection system, saying that “unelected and unaccountable judges are unworthy to rule a free people.” Notes of Caution The Iowa story is a strong cautionary tale illustrating that even without smartphones and social media, one-sided information about lower-visibility elections can spread astonishingly quickly and prove decisive. With them, and the immediacy and tar getability that they offer, the opportunity for political interests to control the judicial selection process becomes even greater. Consequently, civic groups such as bar associations must understand this new reality to remain relevant to the process. In Cook County, the 2018, 2020, and 2022 elections all saw political or ideologi cal opposition to retention candidates that matched or exceeded in electoral impact the opinions of the legal community. And while the county’s Democratic party orga nization reverted to its more restrained stance on retention judges in 2022, it is not certain this will continue. The point is certainly not that activ ists, political organizations, or anyone else should not have their voices heard. The point is that the public is better served if all voices are heard, including those that speak based on professional knowledge and experience and offer a more neutral perspective. The good news for bar associations is that social media and smartphone voting offer the same opportunity to communi cate with and influence voters that they offer everyone else, and to maintain and even increase their impact on future elec tions. Whether they will take advantage of that opportunity is an open question. Albert J.Klumpp, PhD (albertk999@yahoo. com), is an analyst who researches voting patterns in judicial retention elections.

CBA RECORD 19