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 decision making. 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 decision making 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 decision making in these cases on appeal.
Michael S. Kang and Joanna M. Shepherd,
Judging Law in Election Cases,
70 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol70/iss6/5