Most elections to retain Tennessee Supreme Court justices are bland affairs, but this year, Tennesseans have been inundated with mailings, vicious campaign ads and more than $1 million of in- and out-of-state money for the battle over three of the fives seats on the high court.
The three justices in question -- Chief Justice Gary Wade and Justices Connie Clark and Sharon Lee -- have been put on the defensive, battling accusations that they are too soft on crime, especially on death penalty cases, and too liberal for Tennessee. In the other marquee race during Thursday's primary, Republican Sen. Lamar Alexander faces off against Joe Carr, a state lawmaker.
The big push against them has come from Lt. Gov. Ron Ramsey, a Republican and head of the state Senate, who provided the blueprint for the campaign to replace the three justices. Ramsey's political action committee gave the largest recorded campaign contribution — more than $400,000 -- to a conservative group called the Tennessee Forum. The forum sponsored a broadcast ad that says, "Break the monopoly. Replace this liberal court."
Ramsey's efforts have drawn national groups into the fight, like the Charles and David Koch-affiliated Americans for Prosperity, State Government Leadership Foundation and the Republican State Leadership Committee. Ousting the three justices, their opponents say, would allow Republican Gov. Bill Haslam to appoint conservatives to the court.
The Republican State Leadership Committee has reported expenditures of more than $196,000 on a direct mail effort targeting the justices, while the two other groups have spent undisclosed amounts on direct mail and broadcast advertising. The State Government Leadership Foundation has purchased television advertising contracts worth more than $23,000, according to FCC filings by local television stations.
Among Ramsey's tools is a 31-page PowerPoint that paints the three judges as "anti-business" and "soft on crime" – by highlighting two death penalty cases. The presentation has circulated widely on the Internet.
The presentation criticizes the Supreme Court for halting the death penalty for Leonard Edward Smith -- who was sentenced to die for killing two people in 1984 -- and ordering a hearing over whether Smith was "intellectually disabled."
The second case involved Arthur Copeland, sentenced to die for a 1998 murder. The presentation accuses the court of letting Copeland off death row "and back into society" when they ordered a new trial for him in 2007.
The Smith and Copeland cases were unanimous decisions of all five justices — not just the three Ramsey wants gone.
These three targeted justices – who were all appointed by former Democratic Gov. Phil Bredesen -- have heard a total of 21 death penalty cases. Of those, they upheld the death penalty in 18.
Since the retention election system was put in place in Tennessee in 1971, only once has a Supreme Court justice been replaced. In 1996, Penny White lost out to a Republican-led effort to oust her, based on a ruling that overturned a death sentence in a murder case.
"It's the oldest trick in the book," White said in an interview. "I think it is obvious that the tactic is used to instill fear in the public and to sort of try to create this false calculation that if a judge does not vote to affirm a death sentence in every single case, then the judge is doing something wrong."
White was ousted for voting with the court majority in a 3-2 decision in the case of State vs. Odom.
That June 1996 decision upheld a conviction for the rape and murder of an elderly woman, but overturned the death sentence on the grounds that the combination of rape with murder did not meet the requirements for the death penalty because, as the court wrote, the rape did not cause the murder to be "especially heinous, atrocious or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death."
It was the only death penalty decision that White ever participated in as a member of the state Supreme Court and she was not the author of the majority's decision.
At the time she was ousted, the court was composed of five justices who were all Democrats. She was the only one up for a retention vote.
Tennessee has set execution dates for 10 inmates, though they have all been stayed because of pending litigation relating to the state's secrecy laws surrounding its lethal injection drugs.
The state has executed six convicts since 1976 -- and only one since 2009. There are 76 people on Tennessee's death row.
In May, Gov. Haslam signed a bill into law allowing the state to use the electric chair in the event prisons are unable to obtain adequate drugs for lethal injections -- a measure that passed with overwhelming support in the Legislature.
Alicia Bannon of New York University's Brennan Center for Justice, which has tracks local judicial elections, pointed out that the money driving these campaigns doesn't come from criminal justice groups, "but since it's an effective way to garner votes and build outrage, it's being used."
The justices under attack have fought back through personal campaign ads, joint campaign ads through a group they formed called Keep Tennessee Courts Fair.
According to public records, the three incumbents have raised more than $1,045,000 among their three campaigns since the start of the year and Tennesseans for Fair Courts has raised more than $46,000 this year.
The justices' campaign efforts raise many ethical issues because much of their money comes from lawyers, who may at some point find themselves arguing a case in front of the judges.
Bannon said the politicization of these retention elections is dangerous to the judicial system. A new trend, she said, is showing that retention elections are no longer insulated from politics.
"State Supreme Courts are extremely important," she said. "They impact everything and these races aren't expensive races to win. With a small amount of money, you can have a huge impact on the legal landscape of a state, and national political organizations are realizing that."
Nineteen states have retention elections for their Supreme Court justices.
In Iowa in 2010, three state Supreme Court justices were ousted in retention elections after their controversial, though unanimous, decision that upheld the rights of same-sex couples to marry under the state's Constitution in 2009.
In California, Chief Justice Rose Bird was ousted in 1986 after Republican Gov. George Deukmejian led an aggressive campaign against her. Although the death penalty was reinstated in California in the late 1970s, Bird never upheld a death sentence, voting to vacate such sentences 61 times. Two justices, Joseph Grodin and Cruz Reynoso, also were ousted in that election.
Bannon said that although retention races traditionally remained insulated from politics, these races show that is no longer the case.
"We see judges or justices being targeted for unpopular and controversial decisions that they make on the bench," she said. "And that's concerning because you want judges to be deciding things on the law and on the Constitution and not on popularity."