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Williams v. Legere, Record No. 1225-22-1 (Va. Ct. App. May 2, 2023)

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May 5, 2023

Virginia Appellate Law Blog

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In a case of first impression, the Court of Appeals applies strict scrutiny analysis to the question of the constitutionality of a statute governing the procedure for gathering signatures for a petition for a referendum.


Facts. The City of Williamsburg and James City County School Boards jointly operate a consolidated school system in which the City’s two members are appointed by the City Council and the County’s five members are elected by County voters. Margaret Williams, pursuant to Code § 22.1‑57.2, petitioned for a referendum on whether the City’s members should also be elected by voters. She gathered the required number of signatures from qualified City voters for her petition, but most of the signatures were not witnessed by a City resident, making them unacceptable under the statute and leaving her with too few signatures. (Those who gather eligible signatures, and therefore who usually witness the signatures, are called “circulators.”)

Williams challenged the constitutionality of the witness requirement, arguing that the question was subject to strict scrutiny analysis since the requirement imposed a severe burden on her First Amendment rights. The City claimed rational basis review applied. The circuit court agreed with the City, and, under rational basis review, found the requirement constitutional. Williams appealed.


Issue. Whether strict scrutiny or rational basis review applies to witness circulator residency requirements.


Holding. Witness circulator residency requirements significantly burden the right to political speech under the First Amendment, therefore strict scrutiny applies.


Notes. A referendum is a right allowing voters to override the decisions of their elected representatives as to what is in the public interest. It stems from the concept embodied in the Bill of Rights to the Constitution of Virginia that states that “all power is vested in, and consequently derived from, the people.” Though this is an issue of first impression in Virginia, the United States Supreme Court applied strict scrutiny and invalided several similar requirements on petition circulators. The requirement cuts down the number of circulators Williams can use, which limits the number of voters that Williams can reach and lowers the likelihood that she obtains sufficient signatures. Thus, the requirement substantially restricts Williams’ ability to engage in “core political speech.” The Court of Appeals therefore remanded the case to the circuit court to consider under a strict scrutiny analysis.

Of note, this case was decided after the deadline for the referendum, therefore this opinion could not affect the outcome. The Court of Appeals, however, found that a limited exception to the mootness doctrine applied. The exception allowed the court to consider the case because the underlying proceeding was “short-lived by nature” and “capable of repetition, yet evading review.”


Read the Opinion.

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