Due to the influx of the film industry, Georgia has famously become the Hollywood of the South. But has the Peach State also quietly imported California’s love for direct democracy?
Perhaps not directly. But the Georgia Supreme Court’s Feb. 7 ruling in Camden County v. Sweatt may have opened the door for Georgia to emulate the West Coast by launching citizen-driven referendums and recalls that could enable voters to shape public policy at the ballot box themselves.
The Camden ruling sided with residents who voted in a referendum to block county officials from building a spaceport. In his concurring opinion, Supreme Court Justice Charlie Bethel suggested that via the state’s “Home Rule” law, which was at issue, “Georgia appears to have chosen to allow for petition and referendum challenges to virtually every decision of local governments. This would constitute a giant leap toward what nears a direct democracy model for local government.”
But Bethel warned that “our holding here will, I expect, usher in a frightful season for local governments in Georgia.”
Does the Stop Cop City movement’s current attempt to use a citizen referendum to repeal an Atlanta City Council ordinance authorizing a $90 million police and firefighter training center mean that “frightful” season is here?
Georgia Supreme Court’s about-face
Direct democracy, where a majority of voters decide on policies rather than elected representatives, is a political artifact of the Progressive Era. It’s a prominent lawmaking feature in the American West, especially in California, where the citizenry’s ability to put initiatives, referendums, and recall elections on the ballot was added to the state constitution in 1911. Direct democracy was part of Gov. Hiram Johnson’s strategy to break the Southern Pacific Railroad monopoly on California’s economy and government.
America’s Southern states didn’t quite follow suit.
“In Georgia, we don’t have the history that California has where citizens can just put something on the ballot and have it take the force of law, just like a measure introduced in the legislature,” said Atlanta attorney Robert Highsmith, a partner at Holland & Knight who specializes in public policy litigation.
But Georgia did adopt a “home rule” provision in Article IX of the Georgia State Constitution in 1954 (later amended in 1965). At its core, home rule is about granting more local control of governance.
“So much of what the state was doing as far as legislation needed to be done away with, and home rule let local governments do more of their own decision-making,” said Wendell Willard, a former state representative, city attorney for Sandy Springs and county attorney for DeKalb County.
However, Georgia’s Home Rule law goes further. It gives local officials the power to amend or repeal acts of the General Assembly that apply to a county’s governing authority. It also grants a county’s people the power to change local laws by petitioning for a ballot referendum.
The direct democracy part of the law was first tested in the 25-year-old case of Kemp v. city of Claxton. In 1998, the Georgia Supreme Court ruled against a group of residents and business owners attempting to stop the city of Claxton’s leaders from closing railroad crossings, arguing that the state’s Home Rule law was only intended to affect a city charter. “The resolutions at issue did not affect the city’s charter, and the petitions were therefore unauthorized,” reads the decision, referring to the citizen petition effort.
Angry Camden County voters tested the Home Rule law again in 2022. Ten percent of the county’s registered voters had signed a petition and overwhelmingly voted for a referendum to reverse the county commission’s decision to build a spaceport.
The county commission tried to fight the result in probate court, arguing that the petition that enabled the referendum was invalid because it contained “a number of duplicate and inconsistent voter signatures.” But the Georgia Supreme Court unanimously ruled in favor of Camden County voters on Feb. 7, arguing the county had no authority to oppose the petition for a referendum.
Why did the Supreme Court rule with residents in Camden but against them in Claxton?
In the earlier case, the court didn’t take the Home Rule law’s language at its word, instead ruling that ordinary citizens just didn’t have such legislative power. “The spirit and intent of the legislation prevails over a literal reading of the language,” the court wrote in the Kemp decision.
In contrast, the decision in Camden County v. Sweatt was reasoned from a word-for-word reading of the Georgia constitution, said Wingo Smith, an attorney at Spears & Filipovits. His firm is representing the “Stop Cop City” plaintiffs in a federal lawsuit filed July 10 that challenges restrictions on petition-gathering for a referendum.
“Our court is really literal these days. I think it’s a trend in the Supreme Court everywhere these days to say, ‘Well, I read the law, and it says this, and so that’s what I’m gonna say,” said Smith.
The Camden decision in favor of direct democracy was unprecedented, according to Highsmith, whose firm represented Camden County in the spaceport case.
“Prior to Justice [Carla] McMillian’s opinion, it had been sort of generally assumed that the referendum process really only applied when a local government was exercising home rule to undo something that the General Assembly had done,” said Highsmith.
A sign of more petitions to come?
Some legal experts say that the state Supreme Court’s ruling in favor of direct democracy in Camden County v. Sweatt is making Georgia cities and counties sweat.
“There’s a lot of chatter about counties that are really worried about it, because I think what you see is a big disconnect between representative democracy and direct democracy–and there are lots of political ramifications if we get more of the latter,” said Smith.
That scenario is currently playing out in Atlanta. In June, the Stop Cop City movement became the first citizens’ group to cite Camden County v. Sweatt as a precedent to overturn a local government’s decision.
After the Atlanta City Council voted in favor of funding the Public Safety Training Center, the group started a petition to put a referendum on the November ballot that would repeal a 2021 ordinance that authorized the land lease. They’re currently in the midst of a 60-day sprint to get the 70,000-plus signatures needed by August 14.
That effort likely won’t succeed without a judge’s help. On Tuesday, Stop Cop City organizers announced they’d obtained 30,000 signatures–far short of what’s needed. Organizers say the city of Atlanta’s requirements for petition signatures are overly restrictive: Only Atlanta residents registered to vote since Oct. 4, 2021, can legally sign, and all petitions must be signed while physically inside the city limits—which means no online signatures. What’s more, signatures must be witnessed by another registered Atlanta voter.
That’s why Smith’s firm filed suit against the city of Atlanta and the state of Georgia earlier this month to challenge the restrictive residency requirements for signature gathering. In response, the city cited the Kemp v. City of Claxton decision to argue that the petition effort is “invalid” and should be thrown out entirely.
The federal court has not yet ruled on the lawsuit, but Highsmith believes more home rule petitions are on the horizon, regardless of what happens in Atlanta.
“People now realize that ‘Hey, anything my local government does that I don’t like, I can potentially overturn if I follow this process,’” said Highsmith. “I think you’ll absolutely see more attempts at using it.”
Willard isn’t so sure.
“The history of Georgia and most Southern states shows that people leave it up to governing bodies to make decisions–and if they don’t like it, well, you go to the ballot box and throw the rascals out,” he said.
If the Stop Cop City movement’s referendum effort succeeds, or others like it do in the future, Smith predicts that Republican lawmakers in Georgia could emulate Florida and try to remove the direct democracy provision from the state constitution.
In 2022, the Florida GOP unsuccessfully pushed Amendment 2, which would have abolished the state’s Constitution Revision Commission, which meets every 20 years to recommend changes to the state constitution for Florida voters to decide on.
“Once they had a couple of successes at the state level in Florida, the legislature came in and decided they didn’t want to have to deal with it anymore,” said Smith. “It’s probably why Alabama never had anything like home rule—it’s hard to give up control. Why would we [in the legislature] give someone else the power, when we can just pass a bill anytime we want to do something?”