The long shadow of Bush v. Gore: judicial partisanship in election cases.

• Author: Kang, Michael S.

Table of Contents Introduction I. Bush v. Gore and Judicial Resolution of Election Law II. An Empirical Study of Judicial Partisanship in Election Cases A. Data and Methodology B. Results III. Judicial Partisanship A. Understanding Partisan Loyalty in Election Cases B. Assymmetrical Partisanship: Causes and Implications Conclusion Introduction

Bush v. Gore (1) decided the 2000 presidential election and is still the most dramatic election case of our lifetimes, (2) but cases like it are decided every year at the state level. (3) 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. These state and local law questions typically pertain to the counting of ballots or candidate eligibility--mundane stuff to be sure--but their political importance far outstrips their legal salience when winning the case means winning an election as well. Election cases such as Bush v. Gore embody a fundamental worry with judicial determination of these cases, and therefore these elections: outcome-driven, partisan judicial decisionmaking.

Do judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases? As election cases become increasingly common in a state court system where nine out of ten judges are elected to office, (4) this question is more important than ever. Of course, following Bush v. Gore and related litigation, an entire scholarly literature of criticism sprang up against the Florida Supreme Court and U.S. Supreme Court for deciding state election recount questions to benefit their party-favored candidates in the presidential election. (5) Margaret Jane Radin argued that "five Republican members of the Court decided the case in a way that is recognizably nothing more than a naked expression of these justices' preference for the Republican Party." (6) Richard Epstein, for his part, responded that "it makes no more sense to condemn the United States Supreme Court for its political predilections than it does to condemn the Florida Supreme Court for its." (7)

Determining whether judicial decisionmaking is driven by partisanship, however, presents a vexing methodological problem. It is nearly impossible to disentangle partisanship from simple ideology in most cases of judicial decisionmaking. Given that parties organize along ideological lines, the partisan affiliation of a judge on one hand, and his or her judicial ideology on the other hand, are closely linked and difficult to isolate from one another. Democratic judges tend to decide cases differently than Republican judges. (8) With the different ideological philosophies of the major parties, the partisan split between judges may simply reflect that legitimate ideological disagreement, rather than disparate partisan loyalties, even in politically salient cases.

Take, for instance, Adam Cox and Thomas Miles's study of federal appellate decisions on section 2 liability under the Voting Rights Act. (9) Under section 2, federal judges decide whether a particular jurisdiction has engaged in discriminatory vote dilution on the basis of race. (10) A finding of vote dilution requires the dismantling of the dilutive voting qualification, standard, practice, or procedure in a way that typically increases racial minority political opportunity, which in turn is typically thought to benefit Democratic candidates. (11) With this background, Cox and Miles find the likelihood that a federal judge will vote for the plaintiff in a section 2 case is highly correlated with the partisanship of the President who nominated the judge--Democratic judges are significantly more likely than Republican judges to vote for the plaintiff. (12)

However, Cox and Miles cannot determine why Democratic judges are more sympathetic to section 2 plaintiffs. They admit that one possibility is simply ideological--that Democrats are more liberal on voting rights issues than Republicans. But Cox and Miles also speculate that "Democratic and Republican appointees may be inclined to cast votes that favor the electoral prospects of their own political party." (13) This notion of bare partisan loyalty, independent from ideology, cannot be isolated in Cox and Miles's analysis. Indeed, even in reference to the correlation between partisan affiliation and judicial decisions on section 2, Cox and Miles toggle throughout their discussion among the terms judicial ideology, (14) political ideology, (15) partisanship, (16) and party loyalty, (17) all of which arguably have different substantive meanings. In most categories of cases, decisions that politically benefit a judge's party often can alternately be explained as a matter of ideology instead of raw partisanship.

Our study offers a solution for this methodological dilemma and isolates the raw partisan motivations of judges. We identify the judges' partisan loyalty, as opposed their ideology, by studying their decisions in a special category of cases that offer a clean test of partisan loyalty--candidate-litigated election disputes. (18) Although other types of election law cases come with a clear ideological valence, election cases like these are different. Our election cases are relatively rare and present unusually arcane questions of law. In our data, they arise from legal disputes brought typically by or against a candidate in a particular election, many involving either the counting of ballots or the technical eligibility of a candidate in the particular race. Common issues include whether a candidate could be legally regarded as a resident of a particular jurisdiction as required for eligibility for office, (19) whether certain ballots that were not completely filled out could nonetheless be counted as valid votes, (20) whether a candidate was eligible to appear on the ballot notwithstanding certain technical defects in the application of candidacy, (21) and the correct process for appointing a replacement to a vacated office. (22)

These election cases are perfect for our purposes because as far as we can tell, there is no consistent ideological position on the merits of these questions like there is for most other types of cases. These are all plausibly interesting, important questions to which judges may apply their usual philosophical predispositions and judicial ideology. But there is no ideologically conservative or liberal position on how, for example, to construe a state law question of what constitutes a resident for purposes of candidate eligibility, at least none separate from immediate partisan advantage in the case at bar. No resolution of these cases, regardless of ideological content, is even likely to advantage one major party above the other party over the long run. (23) A decision to include a candidate as an eligible resident for this election may help a judge's party this election, but it may just as easily hurt the judge's party the next time the question comes up. However, the short-run partisan payoff in the current election is typically quite clear. One identifiable side will gain an advantage in these cases depending on which way the case is decided. (24) As a result, the most predictable motivation for judges in these cases is the short-term partisan gain of deciding the election in the case itself. If Democratic judges consistently favor Democratic candidates in these types of cases, it is likely that Democratic judges who consistently favor Democratic candidates in election cases (and just so for Republican judges with Republican candidates) are doing so because they are influenced, consciously or not, by a desire to help their party rather than anything else.

Our set of election cases thus combine clear partisan stakes by which to measure judges' partisan loyalty, but they do not carry the usual ideological valence that complicates attribution of a party-favored vote to partisanship as opposed to ideology. This set of cases therefore provides leverage on the long-studied question of law versus politics in judicial decisionmaking. The entire field of judicial behavior sprouted from the basic question whether judges are guided by their political predispositions in their judicial decisionmaking, and if so, to what degree. We can study this question in the context of election disputes, where the answer is perhaps most salient and in itself intensely important. We collected data on all state supreme court election cases between 2005 and 2015, by the methodology described here, for a total of 407 cases involving 496 individual judges. We report our analysis from this new, comprehensive dataset here for the first time.

First, our analysis of these state supreme court cases reveals that 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. We found a similar partisan imbalance in our original data from 1995 to 1998 and replicated the finding in our new dataset. (25) The margin we discovered is staggering: Republican judges decided election cases in their party-favored direction at a thirty-eight percent higher rate than Democratic judges did. Notably, partisan loyalty is not dependent on selection method. In other words, Republican judges favor their party in election cases whether they are selected to the bench by election or political appointment. This result underscores the fact that all selection methods encourage judges to curry favor with whomever controls their retention, whether it is the electorate or partisan officeholders. Political retention methods implicate partisan politics, and elections fare no worse here in terms of partisan pressure than appointment processes.

Second, partisan favoritism by elected Republicans increases as a function of campaign contributions received from the...