Thoughts about Ballot Question 1

In addition to voting for electors for President and Vice President, for a United States Senator, and for a member of the House of Representatives, Virginians will be voting for two Ballot Questions concerning amendments to the Constitution of Virginia.

Ballot Question 1 states:

Shall Section 11 of Article I (Bill of Rights)of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?

Eminent domain - the power of government to take (with just compensation) private property for public use - has been on the public radar since the U.S. Supreme Court held that New London, Connecticut had every right to take a home that stood in the way of commercial development. The outrage was nationwide. In Virginia that anger was translated into 2007 legislation that prohibited government from condemning property for private purposes. This reasonable legislation is still in effect.

Some, like the Virginia Farm Bureau, fear the current law could be weakened legislatively and wants an amendment to the Virginia Constitution to assure its staying power. That's all well and good. But the proposed amendment adds provisions - provisions that could sink us in an expensive legal swamp - into the eminent domain cauldron. Before we look at that issue, voters should be aware that, if passed, this amendment would not affect the power of the federal government regarding eminent domain.

Ballot Question 1 contains the following language that raises questions about how the General Assembly will define lost profits and access:

Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly.

Current law awards compensation if the property is landlocked after the taking. Under the amendment any reduction of access might be grounds for compensation. So a new median blocking an easy left turn into a McDonald's or a farmer having to divert his hay wagon from a preferred lane might prompt a lengthy court battle and increase the costs of a new road.

The "lost profits" provision is even stickier. Lost profits for how long? How can the legislature or a judge predict future profits that are determined by supply and demand? If the "lost profits" are awarded to a restaurant that soon thereafter goes out of business does it get refunded?

While most Americans want to protect private property rights, they also want to have new roads or utilities such as water, sewer, and electricity done at the lowest possible costs to taxpayers and consumers. This amendment threatens the ability of state and local government to provide those improvements as cheaply as possible.

Ballot Question 1 will be a hay day for two groups - the lobbyists who will twist legislators arms about the enacting legislation and the lawyers who will argue the cases. Beware of the unintended consequences of well-intentioned legislation. The devil, as always, is in the details. Ballot Question 1 should go back to the drawing board.

Constitutional Change - two outta three ain't bad

In much of the 6th District there is little compelling reason to bring voters to the polls on November 2. In spite of some grousing by tea party types that Rep. Bob Goodlatte (R) is just another "power-hungry career politician," the incumbent will again break his five term "pledge" and coast to victory by defeating Libertarian Stuart Bain and independent Jefffey Vanke. Neither Bain nor Vanke has made even a anemic blip on voters' radar.

Yes, there are spirited contests in some localities. For example, Harrisonburg has six candidates (two Republican, two Democratic, and two independent) vying for two city council seats. There is also an election for a couple of school board seats. A drive through the "Friendly City" shows far more local candidate than congressional signs and we might expect turnout there to be higher than in surrounding areas.

Virginia voters will vote on three constitutional amendments. One will raise the cash cap on the so-called "rainy day fund" by 50% to rebuild it faster. This fund is essentially a saving account in which the General Assembly deposits funds during "good times" and make withdrawals during shortfalls caused by economic slowdowns. The General Assembly passed the proposal unanimously... most Republicans like the idea of shrinking government by taking some money out of current budgets while Democrats laud the safety net.

Voters will also consider two other amendments, one dealing with with property tax exemptions for senior citizens. Currently a locality must get permission from the General Assembly to give tax breaks to low income or disabled seniors. This amendment would allow local governing bodies to make their own decision.

The other amendment intends to help veterans (or their surviving spouse) who were totally disabled during their service by exempting them from local property taxes on their home. This break would apply to some 7,000 veterans across the Commonwealth.

You can read the actual text of the amendments at the State Board of Elections. Typically, voters go along with the General Assembly and approve amendments (simple majority vote does it) to the state constitution. Should they do so this time? My position - two outta three ain't bad:

• Increasing the rainy day fund makes sense to me. Perhaps it is the teaching of my depression-era parents, but in my personal life I've operated on this principle. Seems like a good idea for the Commonwealth to sock away funds for the tough times, too. Vote YES on ballot question #3.
• I also like the idea of giving local governments the ability to grant tax exemptions to certain senior citizens without having to ask permission of the General Assembly. This is a decision best left to local officials based on local circumstances. Vote YES on ballot question #1.
• While I generally support the notion of a tax break for disabled veterans, I do not support the General Assembly doing so with local tax dollars. The previous amendment grants more autonomy to local governments, this one encroaches on it. For that reason alone, voters should vote NO ballot question #2.