Richard Briffault has posted this draft on SSRN (forthcoming, North Carolina Law Review). Here is the abstract:
American federal and state elections are largely run by local officials. Although election law is almost entirely determined by the federal government and the states, elections are actually conducted by thousands of different county and city elections offices. This decentralization of election administration has often, and fairly, been criticized as resulting in undesirable interlocal variation in the application of election rules, inefficiency, and racial discrimination. Yet, in 2020, local election administration, particularly in large urban areas, was a source of strength. Local officials proved to be resilient, innovative, and attentive to local conditions. The record-high turnout in the face of a once-in-a-century pandemic was in considerable part due to their efforts to make voting easier and more accessible. These efforts, in turn, have triggered a reaction, with many states adopting new laws intended to curtail local authority.
This Article examines the local role in the 2020 election, together with the state pushback of 2021, as a study of both the surprising significance of local officials in promoting democracy and the place of local government in our intergovernmental system more generally. Local election offices are among the least formally empowered units of local government. They are charged solely with implementing state laws and policies. Yet, the 2020 election indicates they can exercise their authority to promote democracy in their communities. On the other hand, as with local governments generally, local power in election administration is fragile and can be stripped away by hostile state-level forces. By showcasing the importance of local elections officials, the 2020 election has made them a new site of conflict over the strength of American democracy.