Anthony Gaughan has posted this draft on SSRN (Notre Dame Journal of Law, Ethics and Public Policy). Here is the abstract:

This article examines the role of partisanship in Supreme Court election law rulings. To that end, it surveys the major election law cases involving constitutional issues over the past century. This article identifies three distinct chronological phases in the Court’s election law jurisprudence: (1) 1898 to 2000; (2) 2000 to 2010; and (3) 2011 to 2022.

This article makes five main points.

First, it finds remarkably little evidence of partisan influence in Supreme Court election law cases in the 20th century. Justices appointed by Republican presidents routinely joined justices appointed by Democratic presidents in majority and concurring opinions. Only rarely did the Court issue election law rulings with majorities and concurrences formed exclusively of justices appointed by presidents of the same party.

Second, this article contends that the Court’s bipartisan approach to election law cases ended in the 21st century. In the decades since the 2000 Bush v. Gore decision, election law cases have divided the justices along partisan lines to an unprecedented degree.

Third, this article asserts that the ideological realignment of the parties only partially explains the Court’s recent voting patterns in election law cases. The emphasis on judicial ideological conformity with partisan norms inevitably resulted in a significant degree of judicial polarization in election law cases. But in the 20th century, conservative and liberal justices sometimes agreed on major election law cases. Only in the 2000s did conservative and progressive justices chart dramatically different courses in major election law cases. Ideological realignment alone therefore does not fully explain the Court’s partisan polarization.

Fourth, this article contends that any account of the Supreme Court’s partisan divide must also take into consideration the 21st century’s unusually close presidential elections, a development that unfortunately coincided with ideologically polarized judicial appointments. As election law rulings soared in importance, and as presidential candidates committed to basing their judicial appointments on ideology, the justices’ partisan affiliations became disconcertingly accurate predictors of their positions in the most important election law cases.

This article concludes that the justices’ polarized approach to election law cases undermines the Court’s reputation as a neutral arbiter of the Constitution. Indeed, with conservatives holding a narrow 5-4 majority for much of the 2000s and 2010s, one could reasonably argue that the justices—progressive and conservative alike—had a clear conflict of interest when it came to election law cases. Accordingly, this article contends that it is imperative that the justices on both ends of the ideological spectrum make a much greater effort to find common ground in election law cases.