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June 01, 2017 HUMAN RIGHTS

Judges Influenced by Partisan Loyalty in Election Cases

by Joanna Shepherd and Michael S. Kang

Bush v. Gore decided the 2000 presidential election and is still the most dramatic election case of our lifetime, but cases like it are decided every year at the state level. These state and local law cases typically deal with the counting of ballots, candidate eligibility, and other mundane stuff, but their political consequences far outstrip their legal salience when winning the case means deciding an election as well. Do judges decide these election cases based on their partisan loyalties? As election cases become increasingly frequent in a state-court system where nine out of 10 judges are elected to office, this question is more important than ever.

Partisan Justice, our recent empirical study of election cases, finds that many judges are influenced by their partisan loyalty in these cases. The research for Partisan Justice analyzed a new dataset of roughly 500 state supreme court election cases from all 50 states from 2005 to 2014 and reached four principal conclusions. Taken together, these empirical findings paint a picture in which the increasing electoral and political pressures of today’s judicial election system encourage judges to engage in partisan decision-making.

Empirical Findings: Judicial Partisanship

Judges favor litigants from their own party in head-to-head cases, and Republican judges are more likely to do so than Democratic judges. In cases pitting a litigant from the Democratic Party against a litigant from a Republican Party, judges from each party are more likely to favor litigants from their own party than are judges from the opposing party. In particular, though, Republican judges are more likely to favor their own party in election cases by a statistically significant margin than are Democratic judges, controlling for other things. Republican judges are 36 percent more likely to cast a vote in favor of their party in election cases.

Why does judicial partisanship differ between the parties? We have no reason to believe that Republican judges are any less committed to impartial justice and the Rule of Law than Democratic judges. We believe, based on previous work and other findings in Partisan Justice, the explanation is partially the result of campaign finance and re-election pressures.

Campaign finance exacerbates partisan behavior. We found that partisan loyalty by elected Republican judges increases as a function of campaign contributions received from the Republican Party and from party-allied interest groups. Democratic judges were unaffected by campaign finance contributions. The effectiveness of the Republican campaign finance system and donor networks may explain why Republicans are more responsive to partisan incentives and thus more likely to favor the party in their decisions. Our previous work shows that the Republican Party is better than the Democratic Party at using judicial campaign finance to affect state supreme court decisions across a whole spectrum of issues beyond election cases. The greater the campaign contributions Republican judges received from the Republican Party and from party-allied interest groups, the greater partisan loyalty they demonstrated.

Judges are less partisan when they no longer need to run for re-election. The difference between Democratic and Republican judges seems to arise not from the individual qualities of the judges, but rather from the incentives they face under the current system of judicial elections. What happens when those incentives disappear? Thirty-seven states have mandatory retirement laws that compel judges to retire sometime between age 70 or 75. For judges in their last term before mandatory retirement, there is no statistically significant relationship between campaign contributions and partisan voting.

Election cases might inform us about judicial partisanship in other kinds of cases. The study examined election cases because they enable us to isolate the role of partisanship in judicial decision-making in a way that many other kinds of cases do not. Analyzing election disputes over contested election results and procedures (as was the case in Bush v. Gore), as opposed to ideologically charged cases over voting rights or campaign finance, solves the usual methodological challenge and isolates the partisan motivation of judges. This is because the election cases in this analysis usually present relatively rare and arcane questions of law, typically litigated by an election candidate. They arise from a legal question in a specific election, many involving the counting of ballots, or the technical eligibility of a candidate for a particular race, or something similar.

As a result, there is no ideologically conservative or liberal position on the merits of most of these questions as there is for other types of cases. Perhaps most importantly, no resolution of this type of case is even likely to advantage one major party above the other party over the long run. For instance, a decision to include a candidate as an eligible resident in a given election may help a judge’s party in that instance, but it may just as easily hurt the judge’s party the next time the question comes up. In such a case, the short-run partisan payoff in the current election is, however, typically quite clear: The winner of the case is more likely to win the election. The temptation for judges in these cases is therefore to help their party by voting either for the party’s candidate or against the opposing candidate.

What do our findings of judicial partisanship in election cases tell us about other sorts of cases? Other cases do not permit us to isolate the role of partisanship for the methodological reasons discussed above, but there is little reason to believe that partisanship influences judges only in election cases. If judges are influenced, consciously or not, by party loyalty in election cases, they are likely to do so in other types of cases as well, even if it is methodologically difficult to isolate the role partisanship plays. The research likely exposes just the tip of the proverbial iceberg, while fundamental rights at stake in other sorts of cases are very likely also at risk.

Joanna Shepherd is a professor of law at Emory Law School. Much of her research focuses on topics in law and economics, especially on empirical analyses of legal changes and legal institutions.

Michael S. Kang is a professor of law at Emory Law School. His research focuses on issues of election law, voting and race, shareholder voting, and political science.