Judicial Partisanship in Voter Identification Litigation

Abstract

Voter identification laws have exploded onto the state legislative scene over the last decade. Observers of this powerful movement correctly note its strongly partisan character. Democrats and Republicans have staked out distinctive and opposed positions; Republican electoral gains consistently precede a state's adoption of new voter identification (ID) requirements, and legislative voting patterns are strictly partisan. There is little evidence thus far, however, regarding the role of judicial partisanship in voter identification litigation. This study seeks to fill that empirical gap. I examine voter identification cases from 2005 through 2015 and find a striking partisan divide, with Democratic judges far more skeptical of voter ID laws than Republican judges. Overall, nearly three-quarters of judicial votes in these cases conformed to the position of the party to which a judge belonged. The votes of judges on this contentious issue are not, however, as starkly partisan as those of elected officials. Furthermore, Democratic judges became significantly more supportive of voter ID laws after the Supreme Court's Crawford decision upholding Indiana's photo ID law. I conclude that both legal and political factors explain judicial behavior in this doctrinal area and that judges cannot be simplistically characterized as either partisan zealots or neutral umpires.