Judging Law in Election Cases

IntroductionHow 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 decide the applicable rules for a given election, often determine election outcomes and therefore feature the highest political stakes in the balance. There is great temptation for judges to decide these cases in a partisan fashion to help their side. And we have found empirically in earlier work that judges do often appear influenced by partisanship in deciding these cases for their own parties in a way that suggests politics matter more than law.1 But in this Article, we argue that election cases actually 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 (e.g., for a litigant from the opposite party, or against one from their own) as a proxy for underlying case strength. Lower court judges' decisions against their partisan interests buck the normal pattern of partisan loyalty and therefore offer an inference of greater case strength compared to other decisions that are consistent with partisan expectations. Put another way, case strength is assumed to be greater for winning litigants when lower court judges went against their own partisan interests to decide for the winning litigants, than in cases where lower court judges predictably decided in favor of their own party's interests. With this inference of case strength in hand, we then can examine whether case strength is predictive for state supreme court decisionmaking in these cases on appeal.We find that our measure of case strength is predictive of state supreme court decisionmaking in election cases. We find, for instance, that 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 own partisan interests such that both law and partisanship direct the same result on appeal. When presented with a winning Democratic litigant who won before a Republican lower court judge, Democratic justices voted to affirm 88.9% of the time on appeal. Republican justices voted to affirm at an 86.4% rate for winning Republican litigants who won before a Democratic judge below. But even when case strength conflicted with a supreme court justice's partisan loyalty, case strength won out most of the time. For instance, when faced with a Republican litigant who triumphed before a Democratic judge below, indicating case strength, Democratic justices still voted to affirm 82.6% of the time despite having to grant final victory to the opposing party. Similarly, Republican justices voted to affirm 66.6% of the time for Democratic litigants who won before a Republican lower court judge. Our other results suggest that where case strength could not be inferred by the lower court disposition, partisanship generally predicted quite a bit, with some interesting complications that we discuss further within.In Part I, we introduce our earlier work on election cases and judicial partisanship before setting forth our new approach to studying the influence of law on judicial decisionmaking. We describe the special nature of the election cases in our database that allow more persuasive inferences of judicial partisanship than typically derived in empirical work on judicial behavior. We then explain our new approach for measuring case strength based on counterpartisan decisionmaking by judges. …