When one thinks of elected officials, those that come to mind are heads of the executive, members of the legislature, and perhaps judges. Thus, in local government law, the focus is on officials elected to local governments’ managing bodies: mayors, councilmembers, county commissioners, school board members. Yet the vast majority of locally elected officials do not serve on such bodies. Rather, they are coroners, sheriffs, assessors, prosecutors, clerks, election administrators, treasurers, recorders, and many other separately elected local officials.
As these separately elected local officials go about performing their important functions, their decisions may breed controversies with other, often more prominent, government officials. The number and intensity of these conflicts have recently increased. For example, governors have removed locally elected prosecutors; secretaries of state have obstructed locally elected election officers; county boards have underfunded separately elected sheriffs; judges have prohibited separately elected court clerks from protecting evicted tenants’ privacy. These and other such moves generate litigation over the question whether separately elected local officials and their decisions should be shielded from other officials’ interference. Any principled approach toward that question must be informed by the institutional motivation for rendering the pertinent officials separately elected to begin with.
Accordingly, after conducting the first-ever fifty-state survey identifying all local officials separately elected in America, this Article ascertains the—far from straightforward—reason for their election. It turns out that the institutional choice to have these officials elected does not necessarily owe to the value normally associated with elections: political responsiveness. Instead, these officials are elected due to a peculiar feature of American state and local government design: a tendency to fracture government. American institutional architecture fractures authority—first between state and local governments, second within local governments, and third among those exercising judicial functions. Fracturing generates gaps—powers left with no government to exercise them. Officials answering directly to voters fill those gaps. The normative ramification is that when a separately elected local official acts within a gap assigned to her, other governments—from whom the pertinent power was intentionally withheld—should not interfere. Concrete tests are developed to identify such cases.