Who Rules at Home?: One Person/One Vote and Local Governments

Briffault, Richard

This Article has four parts. Part I examines Avery v. Midland County and the other Supreme Court cases that extend federal constitutional protection of the right to vote to local elections. These cases develop and implement the model of local democracy in its core area-general purpose governments. Part II considers the Supreme Court's treatment of some local governments as more akin to private enterprises, and, therefore, exempt from the rule of local democracy. The distinction benefits only landowners, and not other groups with special interests in the quality of particular local services. The lack of a clear principle for determining which governments are "proprietary" and which are "governmental" has, at times, made the distinction difficult to apply. Further, the uncertain scope of the proprietary district exception has validated a legal framework in which important public functions may be broken away from general purpose governments and vested in special units not subject to local democratic control. Part III addresses the questions of representation raised by extraterritoriality, boundary changes, and overlapping governments. Although these issues often involve general purpose governments subject to one person/one vote, the courts have not considered themselves strictly bound to the democratic model. Instead, the notion of local government as state instrumentality, carrying out the state's police and general welfare functions at the local level, retains vitality in this setting. In these cases, constitutional protection of the right to vote has been accommodated to the state power to create local governments and to define and alter their jurisdictions and political constituencies. Part IV considers subunit representation in local governments of regional scope. A central thrust of one person/one vote is the definition of "representation" in terms of population. This may be an obstacle to the formation of regional governments because small localities might refuse to join a regional entity unless they are guaranteed their own distinct voice-larger than their population might warrant-in the resulting area-wide government.13 More- over, citizen understanding of and participation in government decisionmaking may be enhanced where regional government districts are coterminous with community or neighborhood lines, even where neighborhoods differ in population.14 It is difficult to deter- mine whether the equal population rule has, in fact, obstructed the formation of metropolitan area governments, because few such governments were considered either before or after Avery. The local aversion to regional government has been sufficiently great that it is difficult to conclude that one person/one vote alone is responsible for the lack of movement towards regional government. Nevertheless, a doctrine flexible enough to accommodate landowner- ship-based governments and considerable state discretion in the allocation of the franchise in boundary changes or instances of overlapping governments has been far more rigid in its refusal to recognize the possibility of distinctive political subdivision interests in regional elective local governments. Today's metropolitan areas face political, economic and social problems that transcend local boundaries. There is a growing need for representative governance structures with the capacity and perspective to address is- sues of regional scope, while maintaining local units that can continue to focus on matters of community or neighborhood significance. Thus, I will suggest the need for a fourth model of local government -- regional federation -- to supplement the existing models of local government as local democracy, proprietary enterprise, and state agency in order to comprehend fully the variety of roles local governments can play in the American political system. The Conclusion offers some brief observations concerning the insights into both the organization of local government law and the conceptual underpinnings of the one person/one vote doctrine gained from examining the application of one person/one vote to local governments. The difficulties of applying the one person/one vote doctrine to local governments illuminate the multiple functions and sometimes conflicting conceptions of local government at work in our system and raise questions about the place of the one person/one vote doctrine itself as a bedrock norm in our theory of representation.


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September 16, 2016