Georgia primary

ATLANTA — Voters not only get to cast their vote for high-stakes races during the Nov. 3 general election, but down ballot, Georgians will get a chance to weigh in on government fees, lawsuit protections for the state and tax breaks for some charities.

Two amendments to the Georgia Constitution are on the ballot after passing both chambers in the General Assembly during last legislative session with the required two-thirds majority.

But voters will make the final decision on whether or not to make the changes a reality.

Here’s a look at the two amendments up for debate:

Proposed Constitutional Amendment 1: Authorizes dedication of fees and taxes to their intended purposes by general state law.

What it does: When the General Assembly enacts a tax or fee for a particular purpose, it is expected to go toward that sole purpose. However, the Georgia Constitution prohibits dedicating revenues to a particular purpose unless by a constitutional amendment.

For example, Joshua’s Law enacted in 2007 requires people convicted of driving while intoxicated to pay a fee which the state is supposed to put toward driver education. Since, Rep. Andrew Welch, R-McDonough said during a Atlanta Press Club panel, the fee has brought in more than $90 million, with only a small amount actually going toward driver education. Former Rep. Jay Powell, R-Camilla, who died last November, was an early advocate of the issue being fixed.

Under current law: The only way to ensure a tax or fee is used for its specified purposes is for voters to dedicate the funds through a constitutional amendment.

“This amendment would then allow the General Assembly to dedicate those fees without having to come back to the people,” Welch, who picked up the bill to sponsor, said “… We can do these things internally — if we commit to you that the fee is going to be used to clean up tires or driver education, certainly we ought to be able to dedicate that money for that purpose."

Critics say: Dedicating fees could put lawmakers in a bind when faced with a financial crisis — such as limiting the movement of money during the economic crisis caused by the pandemic. Under the amendment, the dedication has a maximum period of up to 10 years and a cap of only 1% of total state revenue. The dedication could also be suspended in a financial emergency.

Proposed Constitutional Amendment 2: Waives state and local sovereign immunity for violation of state laws, state and federal constitutions.

What it does: The second constitutional amendment on the November ballot would do away with prohibition barring citizens from filing lawsuits claiming governing bodies have infringed on their constitutional rights.

"This would open up the court houses to allow for citizens to bring a suit against the local government or the state for a violation — what they perceive to be a violation of law— or an action taken that's outside the scope of authority given to the official or a local government," Welch said.

Under current law: A Georgia Supreme Court ruling decided citizens cannot sue the state or local governments over unconstitutional laws unless the government waives its own protection — a doctrine known as “sovereign immunity.” 

The issue has been debated for years in the Georgia General Assembly with measures vetoed by both former Gov. Nathan Deal and current Gov. Brian Kemp. The amendment passed the House and Senate unanimously this year and now takes the question to voters.

Currently, Welch said, if you want to bring a lawsuit against a governing body or official, Georgians would have to sue that person or persons in their individual capacity. For example, if a citizen wanted to sue the Georgia General Assembly for what she deemed as an unconstitutional law, as of now, she would have to sue all 256 members personally.

"If you wanted to bring a lawsuit against an individual person acting in a government capacity, you would have to sue the person in his or her personal capacity, not the official capacity," Welch said. "And that has a negative impact, a chilling effect, of people wanting to serve in public office, if they could be subject to a personal lawsuit and know that they would have to defend that lawsuit on their own.”

Critics say: The state and its taxpayers would be on the hook for cost of litigation. However, included in the amendment is a provision that does not allow for the collection of monetary damages or attorney's fees. 

There is also one statewide referendum on the ballot, an effort led by U.S. Rep. Matthew Gambill, R-Cartersville.

Statewide Referendum: Establishes a tax exemption for certain real property owned by charities.

What it does: In an effort to expand affordable housing across the state, Gambill said during an Atlanta Press Club panel, the tax exemption for qualifying charities, such as Habitat for Humanity, would do away with property tax requirements on single family homes that they build or renovate for families in need. The exemption is only applied to houses that are sold to individuals using a zero interest loan.

Under current law: Georgia nonprofits are required to pay property tax on lots under construction.

"In an effort to try and give (Habitat for Humanity) and any organization that meets the definitions in the opportunity to stretch their dollars further to build more affordable housing," Gambill said. "We felt like this was a great opportunity to do that so that those lots would be exempted from ad valorem property tax until, at which time a home is constructed and deeded over to the individual and at that time, it would then be taxed at fair market value just like anyone's home is at this point.”

Critics say: There may be opportunities for builders to cheat the system and it would take dollars away from local schools and governments who may rely on property tax. To address this, Gambill said there is a provision that requires organizations to pay retroactive property tax if they decide not to construct a home or sell the lot.

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