July 13, 2016

New Report Finds State Court Judges Tend to Decide Election Cases Based on Partisan Loyalty

Partisan Justice

Bush v. Gore was just one example of a problem that could resurface as courts take up cases that could decide 2016 elections

CONTACT: Paul Guequierre pguequierre@acslaw.org or (202) 393-6187

WASHINGTON – A new study by independent researchers at Emory Law School finds that the upward spiral of big money fundraising and aggressive politics in state judicial elections pressures judges to become partisan actors who favor their own party in deciding election disputes. Bush v. Gore is by far the most famous of this kind of election case, but state courts decide many similar cases every year, regularly determining who wields power at the state and local level. State judges are under enormous political pressure to join in party-based fundraising and campaign networks to survive what has become a fiercely competitive electoral environment. Analyzing a new dataset of cases from 2005 to 2014, Partisan Justice finds that state court judges are systematically biased by these types of campaign finance and re-election influences to help their party’s candidates win office and favor their party’s interests in election disputes. It provides the first systematic evidence of the hidden influence of raw partisanship and party campaign finance on judicial decision-making in these election disputes.

Especially troubling is that here is little reason to believe that partisanship influences judges only in election cases. If judges are influenced, consciously or not, by party loyalty in election cases, they are likely tempted to do so in other types of cases as well, even if it is methodologically difficult to prove the role partisanship plays. The study, titled Partisan Justice, likely exposes just the tip of the proverbial iceberg.

Partisan Justice Principal Findings:

Judges favor litigants from their own party in head-to-head cases.

In cases that determine whether a Republican or Democrat wins an election, judges affiliated with both parties tend to cast partisan votes in election cases, but Republican judges systematically favor their own party in election cases by a statistically significantly greater margin.

Campaign finance exacerbates partisan behavior.

The nature of the Republican Party’s system of campaign finance and donor networks may explain why judges affiliated with the party are more responsive to partisan incentives and thus more likely to favor the party in their decisions. The Republican Party appears to be more effective than the Democratic Party at using judicial campaign finance to affect state supreme court decisions across a whole spectrum of issues beyond election cases.

The larger the amount of campaign contributions Republican judges facing elections received from the Republican Party and from party-allied interest groups, the greater amount of partisan favoritism they demonstrated.

Judges are less likely to be partisan when they no longer need to run for office.

Thirty-seven states have mandatory retirement laws that compel judges to retire sometime between age 70 and 75. For judges in their last term before mandatory retirement, the relationship between campaign contributions and partisan voting disappears.

The problem of partisan decision making is arguably getting worse over time.

Comparing data from election cases decided from 1995 to 1998 with the 2005 to 2014 dataset suggests that Republican judges were less likely to cast partisan votes in the 1990s, before the explosion of spending on state supreme court elections over the past 15 years.

Partisan Justice by Dr. Joanna M. Shepherd and Dr. Michael S. Kang, law professors at Emory University, is another in a series of ACS-sponsored studies including Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases, published in 2014, and Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, published in 2013. That report, authored by Professor Shepherd, revealed the growing influence of contributions on state supreme court judges. Beginning in the 1990s, and accelerating in almost every election cycle since, judicial elections have become more competitive and contentious, and campaign spending on these elections has skyrocketed, the research finds. Incumbent judges almost never lost their reelection bids during the 1980s, but by 2000 their loss rates had risen higher than those of congressional and state legislative incumbents.

While the majority of media attention is focused on the United States Supreme Court, elected judges at the state level handle more than 90 percent of the United States’ judicial business. This little-noticed aspect of our democracy gives special interest money a powerful influence.

Read Partisan Justice in its entirety here.

To speak with the author or others knowledgeable about this report, please contact Paul Guequierre, ACS director of communications, at pguequierre@acslaw.org or (202) 393-6187.

The American Constitution Society for Law and Policy (ACS) is the nation's leading progressive legal organization. In its 15th year, ACS has a nationwide network of lawyers, law students, scholars, judges, policymakers and other concerned individuals dedicated to making the law a force to improve lives of all people. For more information about the organization or to locate one of the more than 200 lawyer and law student chapters in 48 states, please visit www.acslaw.org.