“The Boundary Problem and the Changing Case Against Deference in Election Law Cases: Lessons from Local Government Law”

David Schleicher has posted this draft on SSRN.  Here is the abstract:

This essay for the 2016 AALS Section on Election Law Program, “Election Law at the Local Level,” applies lessons from local government law to election law problems. Both local government and international law scholars discuss something sometimes called the “boundary problem.” A simple belief in democracy or self-determination — or the decision of some group of voters — cannot provide much guidance about what the boundaries of a city, state, or nation should be. Before a geographically-bounded group of voters can decide its own boundaries, who comprises the relevant group must itself be determined. Any such choice will exclude some people who claim an interest in the decision. The group of deciders cannot be determined democratically, as a vote to decide who decides would face the same problem. Some value other than self-determination must be introduced to determine who decides before any boundaries can be set. The implication is that any city, state, or country’s decision about its own boundaries is not due any particular deference on democratic grounds. The Supreme Court has endorsed this view, giving states virtually free reign to determine who should participate (if anyone) in elections setting local boundaries.

There is a functional analogy between election laws and boundary drawing. Like determinations about the boundaries of a polity, election laws determine who may participate as part of tomorrow’s electorate and how those votes will be aggregated. Because both involve decisions that include or exclude others from the body politic, the boundary problem should also apply to election law. This fresh way of thinking about election law suggests that courts should not give their ordinary, democratically justified deference to legislative enactments in election law cases, one quite distinct from traditional principal-agent-style concerns. Further, the boundary problem can help explain the Court’s skeptical attitude in cases like Lucas v. The Forty-Fourth General Assembly of the State of Colorado, where voters themselves in a referendum choose a system other than equal representation.

Finally, the boundary problem bites more severely when local governments pass election laws. Local governments have all sorts of tools for determining who may live in town — from taxes to land use — that can entrench today’s majority. Local election laws provide these majorities with yet another tool, which makes competition even more unlikely. Whatever deference is due in election law cases generally, courts should give less deference to locally-drawn election laws.

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