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Will Georgia Counties be Governed by Popular Vote?

12/12/22

By: Katie Taylor and Amy Cowan

In a case of first impression, the Georgia Supreme Court has been asked to decide whether voters can void contracts executed by elected county boards of commissioners via referendum. In Camden County, Georgia v. Robert C. Sweatt, Jr., et al., Case No. S22A0837, county voters urge the Court to uphold the constitutionality of a referendum election to repeal resolutions of the Camden County Board of Commissioners. The striking feature of the case is its potential impact on day-to-day county governance. If contracts duly voted on and approved in public county government meetings can be voided by a vote of the citizenry, what else can be put to the vote?

The case arises from a years-long debate over a proposed spaceport, which came to a head when the County Board voted to approve an option agreement to purchase a spaceport property. The above-mentioned group of Camden County voters responded by filing a petition in the county probate court to hold a referendum election. The sole item on the ballot was whether the resolutions authorizing the option contract should be repealed. The County Probate Judge sanctioned the petition, the election was held, and the result of the vote was to reject the Board’s decision on the option agreement.

On appeal, the parties have competing interpretations of the county “home rule” clause of the Georgia Constitution, which gives counties legislative power to “adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government . . .” Ga. Const. Article IX, Section II, Paragraph I (a). The voters argue that the vote is valid because the Georgia Constitution provides for referendum elections on “repeals of . . . local acts or ordinances, resolutions”, which may be held by filing a petition in the probate court of the county. Ga. Const. art. IX, Section 2, ¶ 1 (a)-(b). The County, in turn, argues that permitting the referendum results to stand would take away legislative authority from county governments and infringe on their ability to effectively exercise constitutional home rule powers. In its brief, the County describes such an outcome as “a radical grant of legislative power directly into the hands of the electorate”. In other words, the County could have “government by popular vote”, as the Association County Commissioners of Georgia said in their Amicus Curiae brief.

In addition to calling into question the finality of county government action, if the Court rules in favor of the voters, there would likely be an adverse economic effect on counties, which would be responsible for funding a potentially increased number of referendum elections in response to the new precedent. It may be some time before the Georgia Supreme Court issues its opinion. We will be following the case closely and report back when the opinion issues.

For more information, please contact Katie Taylor at Katie.Taylor@fmglaw.com, or Amy Cowan at acowan@fmglaw.com, or your local FMG attorney.