From time to time, voters contact us about how to initiate a ballot referendum question on a local issue that is generating some degree of controversy within the community. Recent issues have included whether or not the County should support a streetcar on Columbia Pike (the County Board ultimately abandoned this pursuit) and, more recently, the location and scope of a new high school.
When you read about other states, most notably California, that regularly have citizen-initiated referenda questions on their ballot, you might think that a similar process would exist in Virginia, right? Alas, this is another one of those areas where laws vary from state to state.
Initiative and Referendum
In an initiative and referendum state, laws permit citizens to collect a specified number of signatures of registered voters, usually a percentage of the registration total, to place a question on the ballot. Even in these cases, the proposed question must go through an approval process before the petitioner is given permission to begin collecting signatures, and there is a filing cost to help deter frivolous questions. Often, an advocacy group takes responsibility for the initiative. For example, the November 2018 ballot in California includes a question that asks whether ambulance workers should be paid while on-call during their breaks. This measure was initiated by Californians for Emergency Preparedness and Safety.
The Dillon Rule
John Forrest Dillon (1831-1914) was a jurist who developed a popular treatise on the power of state government over local and municipal governments. Known as Dillon’s Rule or the Dillon Rule, the theory states a municipality may exercise only those powers expressly conferred by statute, necessarily or fairly implied by the expressed power in the statute, or essential and not merely convenient.
In other words, a local government has limited authority and can only pass ordinances or laws if they have been approved by the state government and are authorized by state law. Virginia adopted the Dillon Rule in 1896, Since then, if a local government wants to enact a measure that is not already specifically authorized by the Code of Virginia, they must ask the Virginia General Assembly to pass a law allowing them to do so. Sometimes they are successful and sometimes they are not, depending upon the political climate and how well the local government has presented the issue to the General Assembly.
Virginia Ballot Questions
When it comes to ballot questions in Virginia, the Code of Virginia is very limited as to the type of question that may appear. The General Assembly can and does authorize proposals to amend the Constitution of Virginia (there are two such proposals this year) or state bond questions, and local governments such as the Arlington County Board may authorize bond referenda questions (we have four this year). See our Elections Page for more information.
The Virginia Department of Election’s guidance on placing a question on the ballot notes two specific questions that broadly apply to all localities: whether to have an elected School Board and whether to allow off-track betting. Both measures appeared on the 1993 ballot in Arlington, and while the elected School Board passed, off-track betting did not.
Another question that has appeared on Arlington’s ballot is whether the County should activate a Housing and Redevelopment Authority. This question, which appeared on the ballot four times since the 1950s, most recently in 2013, has failed to win voter approval each time.
In 2010, a coalition of groups were approved to circulate petitions to change the structure of Arlington’s government, from the County Manager Plan with five at-large Board members, to the County Board Plan, with most Board members elected by district and one at-large. Not only did they fail to collect the required number of valid signatures, but also several petition pages were declared invalid when it was revealed that two of the paid signature collectors were convicted felons who had not had their rights restored.
Ballot Questions in the 1950s
Although the Dillon Rule was in place, Virginia law must have been more permissive during the middle 20th Century, as our ballot archives from that period show a number of locality-specific questions. The 1952 ballot, for example, includes questions such as “Shall County Department heads be appointed by the County Manager?” and “Shall Arlington County be incorporated into a city?” Although we don’t have records of the vote totals, we can assume the former passed or at least was adopted as practice, and the latter did not.
The 1956 ballot included a controversial question on whether bond questions on the ballot shall be approved by a majority of freeholders, or property owners, voting in the election. We do have news reports that this measure passed and created a legal controversy, but we’ll cover that in another post!
The Cumberland Landfill Referendum
In an article in this week’s Richmond Times-Dispatch, a citizen in Cumberland County attempted to challenge state law, and subsequently the Dillon Rule. Bill Bruce believed he had a First Amendment right to circulate a petition to prevent the Cumberland County Board of Supervisors from moving forward on a landfill project. The court, however, rejected his claim, citing the Dillon Rule.
Dillon continues to rule in Virginia.
Posted August 16, 2018
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