Author ORCID Identifier
Joanna Shepherd 0000-0002-1435-0197
Candidate-litigated election disputes, Campaign contributions, Partisan loyalty, Judges, State courts, Election law
Bush v. Gore decided a presidential election and is the most dramatic election case in our lifetime, but cases like it are decided every year at the state level. Ordinary state courts regularly decide questions of election rules and administration that effectively determine electoral outcomes hanging immediately in the balance. Election cases like Bush v. Gore embody a fundamental worry with judicial intervention into the political process: outcome-driven, partisan judicial decisionmaking. The Article investigates whether judges decide cases, particularly politically sensitive ones, based on their partisan loyalties more than the legal merits of the cases. It presents a novel method to isolate the raw partisan motivations of judges and identifies their partisan loyalty, as opposed to their ideology, by studying a special category of cases: candidate-litigated election disputes. The Article finds that Republican judges display greater partisan loyalty than Democratic judges in election cases where ideology is not a significant consideration. This result is not a function of selection methods, with both elected and appointed judges behaving similarly, but is partially a function of party campaign finance for Republican elected judges, with party loyalty increasing with party money received. However, the effect of party money disappears for more visible election cases and for retiring judges in their final term. What is more, partisan loyalty diminishes when state supreme court elections feature more campaign attack advertising. These findings give reason to rethink judicial resolution of election disputes that require impartial, nonpartisan settlement and offer new insight into judicial partisanship as a more general matter.
Stanford Law Review
Michael S. Kang & Joanna M. Shepherd, The Long Shadow of Bush v. Gore: Judicial Partisanship in Election Cases, 68 Stan. L. Rev. 1411 (2016).