Michael Kang and Joanna Shepherd have posted this draft on SSRN (forthcoming, Stanford Law Review). Here is the abstract:
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. American law leaves it to ordinary common-law courts to regularly decide questions of election rules and administration that effectively decide electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial determination of these cases: outcome-driven, partisan judicial decisionmaking. This Article investigates whether judges decide cases, particularly political sensitive ones, based on their partisan loyalties. It presents a novel method to isolate the raw partisan motivations of judges and identifies their partisan loyalty, as opposed to their ideology, by studying decisions in a special category of cases almost entirely about partisan loyalty — candidate-litigated election disputes. The Article finds that Republican judges display greater partisan loyalty than Democratic judges in election cases where ideology is not a significant consideration. This result is not a function of selection methods, with both elected and appointed judges behaving similarly, but it is partially a function of party campaign finance for elected Republican judges, with party loyalty increasing with party money received. However, the effect of party campaign finance disappears for more visible election cases and largely disappears for retiring judges in their final term. What is more, partisan loyalty is reduced when state supreme court elections have recently featured more campaign attack advertising. These findings give reason to re-think judicial resolution of election disputes that require impartial, nonpartisan settlement and offer new insight into judicial partisanship as a more general matter.