Chris Walker at Jotwell, reviewing Kevin M. Stack, The Internal Law of Democracy, 77 Vand. L. Rev. 1627 (2024):

In The Internal Law of Democracy, Professor Stack examines how internal administrative law has shaped election administration. After Part I of the article provides a cogent summary of the internal administrative law literature to date, Part II turns to election administration and presents three important case studies: local voting practices in the South during the Jim Crow era, the 2000 Bush-Gore presidential election recount in Florida, and the 2020 COVID-19-related mail-in ballot controversies in Pennsylvania. Through these case studies, Professor Stack effectively illustrates how internal law shapes elections. As he concludes from these case studies, “this internal law made by election officials and administrators to organize and guide their own discretion has determined who votes, how they vote, and whether their votes are counted.” (P. 1711.)

After presenting these case studies, Part III zooms out to document internal law’s status, variety, and sources in state and local election administration as well as how federal law regulates that internal law today. These state and local internal laws range from formal rules to informal guidance, and from state-mandated standards to local on-the-ground, in-the-moment decisions. At the federal and state levels, Professor Stack concludes that “the overall picture is of limited federal oversight and uneven (and often weak) state external checks on the internal law of democracy.” (P. 1689.)

Part IV—perhaps my favorite part—presents Professor Stack’s vision for internal laws governing election administration. He identifies four rule-of-law conditions that should guide a reform agenda for election administration: “internal law must be (1) consistent with external law, (2) public and accessible, (3) presumptively binding on lower-level officials, and (4) justified publicly.” (P. 1698.) He recognizes that this reform agenda is easier said than done, due to the unique circumstances of election administration. Among other things, “election administrators and workers require explicit answers in a time-sensitive and pressured environment,” and “election administration relies heavily on a unique personnel model” of “temporary workers who volunteer or serve for a nominal wage.” (P. 1692-93.) In light of these circumstances, Professor Stack concludes that “an internal law of democracy that prospectively guides the operational choices faced by those who administer elections is a necessary condition for election administration—and can contribute to the public’s perception of election fairness.” (P. 1695.) Part V concludes by addressing some obstacles and objections, including express local preemption to home rule, criminal sanctions for deviation from state election policy, partisan influence, and the potentially “existential threat” of the independent state legislature doctrine.

The Internal Law of Democracy demonstrates the value of administrative law scholars shifting their attention away from the federal bureaucracy and toward state and local government law. In that sense, it reminds me a lot of the terrific scholarship by Miriam Seifter and Maria Ponomarenko, among others. The article also shows the value of the fields of state and local government for administrative law. I wish our fields interacted more; local government law in particular has so much to offer to our field in terms of theory and framing. I hope this article sparks more cross-pollination and interaction between the fields. Administrative law would be better for it….