Appeals court questions state law on referendum signature collectors

The Virginia Court of Appeals is asking a lower court to consider whether state law setting a local residency requirement for people collecting and witnessing signatures in support of a referendum violates political speech rights under the First Amendment.

The case, Williams v. Legere et al., concerns an attempt by Williamsburg resident Margaret Williams to put a referendum on the November 2022 ballot on the question of whether members of the joint Williamsburg-James City County School Board who represent Williamsburg should be directly elected. 

The division is one of just 15 in Virginia where school boards are partially or fully appointed. While the five members of the seven-member Williamsburg-James City County board who represent the county are directly elected by residents, the two members who represent the city are appointed by city council. 

State law allows voters to petition a circuit court to hold a referendum on whether their local school board should be directly elected. Virginia code requires that the petition be signed by at least 10% of the locality’s registered voters 111 days before the general election. 

Last June, Williams began collecting the 999 signatures needed for such a petition in Williamsburg. By the middle of July, she had submitted 1,587 signatures to the court, and City Registrar Tina Reitzel later determined 1,246 were qualified city voters.

However, the registrar found only 64 of the signatures met statutory requirements for a referendum because the people who witnessed the remaining signatures — the people circulating the petition — were residents of either James City County or York County. 

Reitzel’s determination was based on a different provision of state law requiring that all signatures collected on a petition for a referendum “shall be witnessed by a person who is qualified to vote, or qualified to register to vote, in the referendum for which he is circulating the petition.” 

Williams then sued three members of the Williamsburg Electoral Board and the city registrar, arguing state law was severely limiting her First Amendment rights. The city of Williamsburg intervened, arguing that the requirement protected “the integrity of the referendum process … by requiring that those driving the change and circulating the petition are would-be voters of the referendum itself.” 

After the joint Williamsburg-James City County Circuit Court ruled in favor of the city, Williams appealed the case to the Virginia Court of Appeals.

On May 2, the higher court reversed that decision and asked the circuit court to analyze whether the residency requirement in state law “is necessary and narrowly tailored to achieve a compelling government interest.”

The opinion by Judge Kimberley Slayton White noted the U.S. Supreme Court has previously found “that the distribution of referendum petitions is a protected right to speech under the First Amendment and that any limitation on political expression is subject to ‘exacting scrutiny.”

In the Williamsburg case, “the City wishes to enforce a requirement which would cut down the number of political message carriers, thus limiting the audience Williams may reach,” wrote White. “Such a requirement substantially restricts Williams’ ability to engage in ‘core political speech. Because this restriction on political speech is a clear deprivation of a right guaranteed in the First Amendment, courts must subject it to strict scrutiny.” 

White also pointed to U.S. Supreme Court decisions striking down various requirements linked to the circulation of petitions, such as requirements that a person circulating a petition for a ballot initiative be a registered voter and wear an identification badge, as “impermissible restrictions on the fundamental free speech right of political expression as guaranteed by the First Amendment.” 

Nicole Trifone, a spokesperson for the city of Williamsburg, said the city had no comment on the ruling.