Kevin Stack has posted this draft on SSRN (forthcoming, Vanderbilt Law Review). Here is the abstract:

The conventional focus of election law is the constitutional, statutory, and judicial constraints on election officials. But the operation of elections also depends on the law that election officials themselves create. This “internal law of democracy”—produced by state and local election officials and addressed to election personnel and workers—provides on-the-ground guidance on registration, voting, and vote counting; specifies internal processes and protocols; and interprets and translates the meaning of constitutional and statutory law for use within the election bureaucracy.

This Article initiates examination of the internal law of democracy. The Article begins by introducing the idea of internal law, developed in the field of administrative law, to the field of elections. Using this lens to examine local voting practices in the South during the Jim Crow era, the 2000 presidential election recount in Florida, and the 2020 mail-in ballot controversies in Pennsylvania, the Article shows that, for good or for ill, internal law bears on who votes, how they vote, and whether their votes are counted. It then provides a general account of the status, sources, varieties, and regulation of this internal law today. The analysis exposes the mix of express delegation, implied power, and home rule authority that undergirds these lawmaking practices.

After documenting the relevance, scope, and impact of internal law in elections, the Article contends that having the right kind of internal law is necessary for nonarbitrary election administration. Internal law that anticipates the operational needs of officials and provides practical guidance creates a basis for consistent, nonarbitrary treatment of voters. But to serve this productive role, as opposed to taking a pathological form as it did during the Jim Crow era and continues to do in places today, internal law must satisfy basic legality conditions. These conditions—consistency with external law, publicity, presumptively binding status, and public justification—are foundations for a jurisprudence of election administration. They also frame a reform agenda of monitoring internal law’s compliance with these constraints. Election law, like other fields of law, exists in an age of administration, and our attention must follow.