Christopher Walker

In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978), the Supreme Court famously announced that “[a]gencies are free to grant additional procedural rights [beyond those required by the Administrative Procedure Act] in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” In an administrative law course, we focus somewhat myopically on the second half of the statement—that courts cannot impose more procedural requirements on federal agencies than Congress has commanded by statute. But the first part of the sentence is just as important. It is in Vermont Yankee’s “white space,” as Emily Bremer and Sharon Jacobs aptly call it, that so much of the action in administrative law takes place. This is the world of internal administrative law.

Historically, internal administrative law has often been neglected in the literature, with some exceptions such as Jerry Mashaw’s majestic Bureaucratic Justice. In recent years, however, we have seen more scholarly attention, which is chronicled in Gillian Metzger and Kevin Stack’s 2017 article Internal Administrative Law. I have contributed some to this literature, trying to operationalize internal administrative law and exploring how it can constrain and empower regulatory activities outside of courts. A recent addition to the literature is well worth a read and the subject of this review: Professor Stack’s article The Internal Law of Democracy is a spectacular exploration of how internal law works in state and local governments, in the context of election administration. There is so much to like (lots) about this article, and it is a must-read for scholars of administrative law, election law, and local government law as well as political science and public administration.

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.

I feel compelled to flag for the reader that while the body of the article is a must-read, the footnotes are also well worth your time. In his typical style, Professor Stack strives to cite all of the relevant literature, giving credit where it is due and making connections that were not obvious from the prior scholarship cited. This is a real tour de force. And yet it comes as no surprise to any of us in administrative law. Professor Stack is one of the most generous and engaged scholars in the field. He has helped launch many of our academic careers and has been a valuable mentor to even more people, myself included. If there were a ranking of the number of mentions of administrative law scholars in “star footnotes”—where scholars acknowledge those who provided meaningful feedback on earlier drafts of the article—I would be shocked if Professor Stack were not at the very top of that ranking.

Most importantly, I hope scholars of election law and election administration officials themselves give this article a close read. Effective election administration is necessary for a functioning democracy. And internal administrative law is necessary for effective election administration. “Although there is not a simple cure-all to problems with elections,” as Professor Stack concludes, “an internal law that aligns with these legality values promotes clarity, consistency, and nonarbitrary election administration.” (P. 1712.)