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Wednesday, December 15, 2010

Lawsuit says Iowa judicial retention vote was illegal


Three Des Moines-area attorneys believe the retention vote that ousted three Iowa Supreme Court justices was illegal because the Iowa Constitution mandates the votes for judges be "on a separate ballot."

They have filed suit to keep the three justices, who participated in last year's unanimous ruling that legalized same-sex marriage, from being tossed off the bench.

The ballot used Nov. 2 included the names of the justices standing for retention on the back of a single sheet, "combined with other elections, nonpartisan offices, Constitutional questions and public measures," the lawsuit says.

Thomas W. George, John P. Roehrick and Carlton Salmons are asking for a temporary judicial order that would bar the justices from leaving the Supreme Court when their terms end Dec. 31.

The attorneys are suing Democratic Secretary of State Michael Mauro, who, as elections commissioner, is responsible for state voting and ballot practices.

The lawsuit also names the three justices Iowans voted to oust: Marsha Ternus, Michael J. Streit, and David L. Baker.

A hearing is scheduled for Monday in Polk County District Court.

Mauro said he's confident the lawsuit won't change anything.

"I can't speak for what a judge would say," he said in an interview. "But simple logic tells you this has been in place for quite a while. The voters have made a decision and we should be moving forward, not looking for ways to overturn elections."

The attorney general's office will represent Mauro.

The lawsuit, filed Monday, is the latest legal salvo fired in the wake of the vote to oust the justices.

A lawsuit filed Thursday by Republican plaintiffs contends that the commission process that will be used to screen potential replacement justices denies the public an equal chance to participate. The lawsuit seeks an order preventing seven lawyer members of the state Judicial Nominating Commission from selecting finalists to replace the three justices.

The lawsuit filed this week contends that the ballots cast Nov. 2 were illegal because a 1962 amendment to the state constitution says judges "shall at such judicial election stand for retention in office on a separate ballot which shall submit the question of whether such judge shall be retained in office for the tenure prescribed for such office...."

The Legislature later approved putting the names of all judges on one ballot, the lawsuit says.

But the lawyers argue that "combining on a single ballot all elections, including judicial elections, issues, and measures is a facial violation of Iowa Constitution Article V Section 17."

The lawsuit asks that the three justices serve until the next general election or until a special election using lawful separate ballots.

One plaintiff, Roehrick, is a former chairman of the Iowa Democratic Party. Salmons was registered as a Democrat and George was registered as "no party" in 2007, the most recent year for which The Des Moines Register has online access.


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