Ideological and Partisan Voting
Earlier attempts to empirically measure partisan voting confronted a vexing methodological problem. It is nearly impossible to disentangle partisanship from simple ideology in almost every case of judicial decisionmaking. Given that parties organize along ideological lines, partisan affiliation of a judge on one hand, and his or her judicial ideology on the other hand, are closely linked and difficult to disentangle from one another. Democratic judges tend to decide cases differently than Republican judges, but given the different ideological philosophies of the major parties, the partisan split between judges may simply be a legitimate ideological disagreement, rather than one motivated by partisan loyalty, perhaps particularly so for cases with high political stakes.
Cases dealing with voting rights, such as the dozens of cases on the constitutionality of voter identification laws that have been litigated over the past 10 years, illustrate this difficulty. Republican judges demonstrated a strong tendency to uphold such laws, and Democratic judges a corresponding tendency to strike them down. Many observers of the election process point out that strict voter identification laws favor Republican electoral interests, while reducing barriers to voting tends to favor Democrats. But are these trends in judicial decisionmaking the product of legitimate differences in legal ideology or illegitimate partisan interests? It is very difficult to say with certainty which is the case.
What Election Cases Teach Us About Judicial Partisanship
The kinds of election cases2 that are the subject of this study provide a unique opportunity to study judicial partisanship. Analyzing election disputes over contested election results and procedures, as opposed to ideologically charged cases over voting rights or campaign finance, solve the usual methodological challenge and isolate the partisan motivation of judges. The election cases in this analysis usually present relatively rare and present arcane questions of law, typically litigated by an election candidate. They arise from a legal question in a specific election, many involving the counting of ballots, or the technical eligibility of a candidate for a particular race, or something similar.
…election cases present judges with a clean, immediate opportunity to help their party, or hurt the other major party, usually with few or no complicated considerations of law that might play out in unforeseen ways in the future.
As a result, there is no ideologically conservative or liberal position on the merits of most of these questions as there is for other types of cases. Perhaps most importantly, no resolution of this type of case is even likely to advantage one major party above the other party over the long run. For instance, a decision to include a candidate as an eligible resident in a given election may help a judge’s party in that instance, but it may just as easily hurt the judge’s party the next time the question comes up. The short run partisan payoff in the current election is, however, typically quite clear: the winner of the case is more likely to win the election. The temptation for judges in these cases is therefore to help their party by voting either for the party’s candidate or against the opposing candidate.
Take, for instance, the issues at stake in the Bush v. Gore litigation. At the state level, these were picayune questions involving interpretation of obscure provisions of Florida state election code which had not arisen in the past and in which the parties had little stake beyond their impact on the 2000 election. But, of course, the stakes involved in the outcome of the particular case before the court literally could not have been higher. As a result, election cases tend to be very important in their short-term political effect but are otherwise unimportant legal issues with little foreseeable partisan advantage one way or the other over the long term. For this reason, election cases present judges with a clean, immediate opportunity to help their party, or hurt the other major party, usually with few or no complicated considerations of law that might play out in unforeseen ways in the future.
This risk of partisanship in election cases has worried election law scholars throughout the Bush v. Gore litigation and certainly ever since. The torrent of outrage over Bush v. Gore flowed from the widely-held perception that, depending on one’s partisan orientation, either the Republican-appointed majority of the U.S. Supreme Court, or the Democratic-appointed majority of the Florida Supreme Court, decided those cases in 2000 out of a desire to help their party’s presidential candidate, rather than fidelity to the law.
Although these concerns are intuitive, there has been very little systematic study of the parties’ campaign contributions and other campaign finance activity in judicial elections. The only empirical study of the role of party support on judges explored the relationship between judicial decisionmaking and contributions from a party coalition that includes both the judge’s political party and allied interest groups. The study found that contributions from both political parties and interest groups are associated with judicial voting in the preferred ideological direction of the relevant party coalition.3