“Local Democracy on the Ballot”

Josh Douglas has posted this draft on SSRN (forthcoming Northwestern Law Review Online).  Here is the abstract:

This Essay highlights how local voter-backed initiatives can play a significant role in dictating voting rights and election rules. The 2016 elections saw various debates on voter-backed changes to local election laws. Voters in various localities decided whether to expand the electorate for local elections, change electoral structures such as imposing term limits or creating independent redistricting commissions, or adopt campaign finance reforms. Most of these ballot initiatives passed. They therefore provide a strategy for how to improve our election process moving forward: start local and normalize the election innovations so that they will eventually trickle across to other municipalities and then influence state and federal policy. This avenue to election law reform is more vital than ever after the results of 2016 federal and state elections. Republicans, who control all branches of the federal government and most state governments, are less likely to enact voter expansions at the statewide or national level. But reformers can look to local laws to demonstrate how these innovations can help to improve our democracy. In addition, the Essay provides courts with a test to employ when facing an inevitable judicial challenge to one of these local election law initiatives: courts 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 or lead to entrenchment. In particular, 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.

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