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Prof. Terri Peretti: Do judges make partisan decisions in voter ID cases?

Terri Peretti published her research on "Judicial Partisanship in Voter Identification Litigation" in the September 2016 issue of Election Law Journal. She examined the recent explosion of voter identification laws in the U.S. and the multiple legal challenges they triggered. As many correctly observe, this reform movement has been extremely partisan. Democrats and Republicans have staked out distinctive and opposed positions; Republican electoral gains consistently precede a state's adoption of new voter identification requirements; and legislative voting patterns are strictly partisan. There is little evidence thus far, however, regarding the role ofjudicial partisanship in voter identification litigation. This study is a first step in filling that empirical gap. It examines voter identification cases from 2005 through 2015 and finds 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. Judicial voting on this contentious issue was not, however, as starkly partisan as that of elected officials. Furthermore, Democratic judges became significantly more supportive of voter ID laws after the Supreme Court's 2008 Crawford decision upholding Indiana's photo ID law. The article concludes that both legal and political factors explain judicial behavior in this area and that judges cannot be simplistically characterized as either partisan zealots or neutral umpires.