Article

Preempting Politics

State Power and Local Democracy

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.

* Joshua S. Sellers is an Associate Professor of Law, Arizona State University, Sandra Day O’Connor College of Law. Erin A. Scharff is an Associate Professor of Law, Arizona State University, Sandra Day O’Connor College of Law.

We want to thank Richard Briffault, Sara Bronin, Paul Diller, Josh Douglas, Joel Edman, Clay Gillette, Ariel Jurow Kleiman, Noah Kazis, Rich Schragger, Mike Selmi, Rick Su, participants in the State and Local Government Law Works-in-Progress Conference, and our colleagues at Arizona State for helpful suggestions and feedback. We are particularly grateful to Jim Gardner, Richard Pildes, and Ken Stahl for their detailed comments. We received outstanding research assistance from Gideon Esakoff and Scott Goldner. Lastly, we are grateful to the staff of the Stanford Law Review for their superb editing.