This Essay, focusing particularly on voter-backed local election rules, proceeds in three parts. Part I highlights how local laws play a significant role in dictating voting rights and election rules. Too often election law scholars focus solely on federal or state law. But local laws are also important in defining the right to vote and providing rules for our democracy. New local election law experiments in one place can highlight innovative reforms that other cities and states may eventually adopt. This avenue to election law reform is particularly important given the current political climate.
Part II considers local ballot initiatives in 2016 regarding election laws. It highlights the local push to expand voter eligibility, change electoral structures, and fix campaign finance rules throughout the country. From lowering the voting age for school board elections in Berkeley, California, to altering the election rules in Benton County, Oregon, to adopting public financing in Howard County, Maryland, voters in cities and counties considered various new rules for their elections. The rules that passed will alter how elections operate in those areas. Part II also highlights the need for greater resources—particularly the use of new technologies—for local election administrators to implement voting reforms.
Part III argues that courts, when faced with a judicial challenge to one of these local laws, should generally defer to local rules that expand the electorate or open up the political process to more people, but should not defer to local voting restrictions or rules that tend to aggrandize the majority’s control. Deference is particularly warranted for voter-backed initiatives on local election laws that expand access for voters or candidates because the people themselves have ratified those rules. In these instances, the majority has given up some of its own power or limited entrenchment and incumbent control, which allows more people to become involved in the election process. From a normative perspective, representative democracy works best with more people participating, either as voters or candidates. Thus, local laws that enhance democratic participation by expanding the electorate or reducing campaign finance barriers to running for office epitomize the benefits of local democracy and deserve judicial deference.
Focusing on local election laws represents a long-term solution; nationwide reform of our electoral system will not happen overnight. But in twenty to thirty years, if local governments have normalized these democracy-enhancing efforts and courts have upheld the reforms, then it will be easier to enact them on a wider scale. This Essay begins the conversation on how to make that happen.
Douglas, Joshua A., "Local Democracy on the Ballot" (2017). Law Faculty Scholarly Articles. 611.