Michael Kang and Joanna Shepherd have posted this draft on SSRN (forthcoming Vanderbilt Law Review). Here is the abstract:
How much does law matter in election cases where the partisan stakes are high? At first glance, election cases may seem the worst context for studying the influence of law on judicial decisionmaking. Election cases, which typically decide the applicable rules for a given election, often determine election outcomes and therefore feature high political stakes in the balance. But we argue that election cases offer a unique opportunity to study the role of law in judicial decisionmaking precisely because we can assume partisanship influences judges in these cases.
If judges prefer to decide election cases consistent with their partisan interests, then they may decide these cases contrary to partisan interests mainly when the out-party litigant’s case has strengths sufficient to overcome this usual, countervailing influence of partisan loyalty. For this reason, we use lower court judges’ decisions contrary to their partisan interests as a proxy for underlying case strength. We find that our measure of case strength is predictive of state supreme court decisionmaking in these election cases on appeal. State supreme court justices from both parties are most likely to affirm when case strength is indicated by our measure. This is particularly true when case strength aligns with a justice’s partisan interests such that both law and partisanship direct the same result on appeal, but even when case strength conflicted with a supreme court justice’s partisan loyalty, case strength won out most of the time. Our other results suggest that where case strength could not be inferred by the lower court disposition, partisanship generally predicted quite a bit, with interesting complications that we explore.