Preempting Politics: State Power and Local Democracy

Scharff, Erin Adele; Sellers, Joshua

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Preempting Politics: State Power and Local Democracy

72 Stan. L. Rev. 1361 (2020)

59 Pages Posted: 19 Jun 2020 Last revised: 22 Jun 2020

See all articles by Erin Adele Scharff

Erin Adele Scharff

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Joshua Sellers

University of Texas at Austin - School of Law

Date Written: 2020

Abstract

States are increasingly responding to local governments’ actions with preemptive legislation. Scholars have tracked this trend through detailed examinations of laws preempting a variety of local government regulations. This Article analyzes a distinct instantiation of state preemption: states’ preemption of local governments’ structural authority, which we term “structural preemption.” Structural authority refers to the autonomy of local governments to design and modify their government institutions and the terms of local political participation. Structural preemption raises fundamental concerns about democratic design, political entrenchment, and political participation that directly implicate democratic outcomes.

The Article proceeds as follows. Part I provides background on local authority and state preemption generally, with a particular focus on state preemption’s recent substantive manifestations. It then discusses structural preemption specifically and why it presents distinct issues. The Part closes with a brief overview of structural preemption doctrine. Part II documents recent structural preemption bills proposed in or enacted by state legislatures. Part III explicates four values as paramount when thinking about structural preemption:

(1) administrative cost,

(2) democratic accountability,

(3) democratic deliberation, and

(4) pluralism.

Part IV then bolsters the normative case for these four values by considering their application in two structural preemption contexts.

Keywords: Election Law, State and Local Government, Preemption, Democratic Design

Suggested Citation: Suggested Citation

Scharff, Erin Adele and Sellers, Joshua, Preempting Politics: State Power and Local Democracy (2020). 72 Stan. L. Rev. 1361 (2020), Available at SSRN: https://ssrn.com/abstract=3616670