Expanding Local Voter Power in Georgia

Voter-initiated ballot measures are not common practice in Georgia. Typically, the Georgia electorate only votes on measures that have first been approved by the state legislature. However, in February, the Georgia Supreme Court ruled in Camden County. v. Sweatt that if voters collect enough signatures through a petition, they hold the authority to vote on the repeal or modification of ordinances passed by their county commission under the state constitution’s “home rule” amendment. The scope of this ruling is likely to be tested soon, as opponents to “Cop City,” a controversial new Atlanta training facility for police and firefighters, are looking to rely on a similarly worded state law to support a ballot measure to halt the facility’s construction.    

The Camden County case originated in 2015 when the board of commissioners approved the county’s entry into an option agreement with Union Carbide Corporation to construct a commercial rocket launch facility. This decision faced opposition from many voters. Relying on the state constitution’s home rule amendment, which provides that amendments to or repeals of local ordinances “may be initiated by petition,” a group of voters submitted a petition to the probate court for a special election to determine whether the commission’s resolutions should be revoked. The probate judge authorized the election, and 72 percent of voters supported the repeal.

The board of commissioners filed a writ of mandamus with the Georgia Supreme Court, challenging the probate judge’s decision and seeking a declaratory judgment. The commission argued that the home rule amendment’s direct democracy provision only applies to state laws intended to impact a county’s governance. Furthermore, the commission pointed out that while the amendment was adopted in 1966, a voter initiative to overturn a county commission’s decision had never occurred in Georgia’s history.

In response, the voters relied on the home rule amendment’s plain text, which not only permits initiatives to repeal or amend the Georgia legislature’s state laws concerning a county’s governance but also encompasses “ordinances, resolutions, or regulations” adopted by a county commission.

The high court concluded that Camden County’s voters had the stronger argument and upheld the probate judge’s decision to validate the petition and allow the election to proceed. Accepting the commission’s argument, the court reasoned, would have effectively nullified the plain text of the amendment.

The immediate consequence of this ruling is that voters throughout Georgia now have the ability to vote on repealing or amending ordinances, resolutions, and regulations enacted by county commissions. However, meeting this requirement is no easy task. In counties with a population of 5,000 or less, a petition must be signed by 25 percent of electors registered to vote in the most recent general election. The threshold is 20 percent in counties with a population of between 5,000 and 50,000, and 10 percent in counties with more than 50,000 residents. 

The ruling may also have consequences for a separate, similarly worded state law called the Municipal Home Rule Act. Under the text of that law, like the home rule amendment, voters can ostensibly petition for ballot measures that involve amendments to cities’ charters, as well as amendments to or repeals of ordinances, resolutions, or regulations. 

To be sure, there is a barrier to interpreting the Municipal Home Rule Act in such a way. In a case from the 1990s, Kemp v. City of Claxton, the act was narrowly construed to apply only to municipal charters, excluding other municipal ordinances, resolutions, or regulations. However, Kemp’s reasoning clashes with the ruling in Sweatt. Although the language in both home rule provisions is nearly identical, the two opinions employed divergent and arguably incompatible methodologies. 

Sweatt relied on the plain text of the home rule act, while the Kemp case argued that “the spirit and intent of the legislation prevails over a literal reading of the language” and that “the legislative intent will be effectuated even if some language must be eliminated.” Considering that Sweatt exemplifies the current Georgia Supreme Court’s inclination to closely adhere to the plain text of provisions when applying rules of interpretation, it is highly likely that the court will overturn Kemp. In another sign of this outcome, during the Sweatt case, Justice Andrew Pinson noted in oral argument, “We can deal with Kemp another day. You can read the tea leaves, but it’s a different provision.” If the Municipal Home Rule Act’s nearly identical language is brought into alignment with the state constitution’s home rule amendment, it could empower voters to have a say in all types of ordinances, regulations, and resolutions passed by city councils.

Currently, there is a significant policy issue in Atlanta that may serve as a test for whether the plain text of the Municipal Home Rule Act will be reinterpreted by the state high court. The Atlanta City Council has voted to lease land in the South Forest to the Atlanta Police Foundation for the construction of Cop City. This planned 85-acre facility has faced opposition from many residents and has garnered national attention. 

In June, opponents of the project — relying on the Municipal Home Rule Act and the Sweatt case — received approval from the city clerk to collect signatures for a ballot measure to halt the construction of Cop City. Their goal is to place the measure on the November ballot by collecting some 70,000 signatures from people who were registered to vote during the most recent general election. This particular case presents a substantial post-Sweatt test for the act and could potentially lead to significant changes in the lawmaking process not only in Atlanta but also throughout every municipality in Georgia. If city governing bodies pass legislation that contradicts the will of the voters, voters may have the ability to directly challenge such decisions. 

Fred O. Smith Jr. is the Charles Howard Candler Professor of Law at Emory University.