The Georgia Constitution prohibits a county, municipality, or other political subdivision (e.g., school system) from incurring any new general obligation debt without the assent of a majority of the qualified voters of the subdivision, obtained in an election held for that purpose. Ga. Const. art. IX, § V, ¶ I(a). This memo summarizes the key requirements for conducting a bond referendum (election) for counties, municipalities and school systems in Georgia.
General obligation bonds for counties, school systems and municipalities must mature within 30 years of issuance. Ga. Const. art. IX, § V, ¶ VI. Prior to or at the time of bond issuance, the county, school system, or municipality must provide for the assessment and collection of an annual tax sufficient to pay the principal and interest of the bonds at the time of maturity. Id. SPLOST bonds may also be issued by counties and county boards of education, payable first from receipts of the 1% special purpose local sales tax (SPLOST) imposed for county or educational purposes. O.C.G.A. §§ 48-8-111 and 48-8-142.
Title 36 of the Georgia Code provides guidelines for counties, school systems and municipalities desiring to conduct bond referendums. O.C.G.A. § 36-82-1. These guidelines, however, must be read in conjunction with Title 21, Chapter 2, which concerns the manner of conducting elections generally. O.C.G.A. § 21-2-15.
Call of Election:
“Special elections” are elections that “arise from some exigency or special need outside the usual routine.” O.C.G.A. § 21-2-2(33). Bond referendums are special elections because they arise outside of usual routine elections. All special elections must be called by an appropriate governmental officer. The call of a special election, when used in relation to special elections or special primaries, is defined as “the affirmative action taken by the responsible public officer to cause a special election or special primary to be held.” O.C.G.A. § 21-2-2(3). The governing body of the proposed issuer must authorize the referendum, and the appropriate officer, usually the superintendent of elections, publishes the official call of the referendum, conducts the referendum and certifies the results of the referendum. O.C.G.A. §§ 21-2-70, 21-2-540(d), 36-82-1; 85 Op. Att’y Gen. 45 (1985).
Title 20 of the Georgia Code requires county boards of education to follow the same procedure in the voting and issuance of bonds as for municipalities and counties. O.C.G.A. § 20 2 430. Also, the county board of education is empowered to divide all of the territory of the county, outside of independent school districts, into local subdivisions called local schoolhouse districts, and to incur bonded indebtedness for such subdivisions pursuant to Ga. Const. art. IX, § V, paragraphs I and IV and in the manner prescribed by O.C.G.A. § 36-82-1. O.C.G.A. § 20-2-431.
Publication and Date of Call:
The date of the call of a special election is the date of the first publication of the election in a newspaper of appropriate circulation. O.C.G.A. § 21-2-2(3). For county, school system and municipal bond referendums, the notice must be published in the official newspaper which publishes the sheriff’s advertisements for the county. O.C.G.A. §36-82-1. O.C.G.A. §21-2-45.1(b) requires the municipality holding the election to “immediately” transmit a copy of the notice of the special election to the Secretary of State. The statute does not elaborate on what “immediately” means, but best practice dictates that the municipality should transmit the notice of the call for election concurrently with its submission of such notice to the official newspaper which publishes the sheriff’s advertisements for the county.
O.C.G.A. § 36-82-1 requires notice of bond referendums to be published (weekly) for not less than 30 days immediately preceding the day of the election, and typically this is accomplished by publishing for five weeks. This longer requirement appears to supercede the specifications in O.C.G.A. Tit. 20 that school bond referendums be published for four weeks.
A longer publication requirement applies to special elections held in conjunction with a general primary or general election, and not conducted “separate and apart” from such general primary or general election, notice of which must be published at least 60 days prior to the date of the special election. O.C.G.A. § 21-2-540(b). O.C.G.A. § 21-2-540(c)(1) and (c)(2) (as amended in HB 296, 2008 Legislative Session), however, exempt special elections to present a question to the voters and special elections or special primaries to fill vacancies in office from the 60-day notice requirement, even when such elections are not held “separate and apart” from the general election. Bond referendums present a question to the voters and thus appear to be exempt from the 60-day notice requirement regardless of whether they are held in conjunction with a general primary or general election.
Content of Notice:
Notice of call for general obligation bond referendums must contain the following information:
- Date of the election
- The question to be put to the qualified voters on that day, namely, whether bonds
shall be issued by the county, municipality, or school system
- The principal amount of the bonds to be issued
- The purpose for which the bonds are issued
- The interest rate or rates which the bonds are to bear
- The amount of principal to be paid in each year during the life of the bonds. O.C.G.A. § 36 82 1(b).
If the referendum relates to SPLOST, the notice and call takes a specialized form that describes the purposes and length of the SPLOST and the amount to be raised, and which may include an authorization for debt to be incurred. O.C.G.A. §§ 48-8-111, 48-8-141, 142.
In lieu of specifying the rate or rates of interest which the bonds are to bear, the notice may state a maximum per annum rate of interest which the bonds will not exceed when issued. O.C.G.A. §§ 36-82-1(b). All legal advertisements of a bond election are to contain a reference that brochures, listings, or other advertisements issued by the governing body of the county or any other person, shall be deemed to be a statement of intention of the governing body of a county concerning the use of the bond funds; and such statement of intention is binding on the governing body of the county and the expenditure of any such bond funds or interest received from such bond funds, unless the governing body uses such bond funds for the retirement of bonded indebtedness. O.C.G.A. § 36-82-1(d).
Dates of Special Elections:
The Georgia Code provides that special elections, including those for bond related debt, may be called only on certain dates. Until January 1, 2010, all special elections may only be held on one of the following dates, at least 29 days (as described above, at least 60 days for some municipal elections) after the date of the first publication of the call for the special election:
In odd-numbered years:
- the third Tuesday in March;
- the third Tuesday in June;
- the third Tuesday in September; or
- the Tuesday after the first Monday in November.
In even-numbered years:
- the third Tuesday in March (in years in which a presidential preference primary is to be held, the special election shall be held on the date of and in conjunction with the presidential preference primary);
- the date of the general primary;
- the third Tuesday in September; or
- the Tuesday after the first Monday in November. O.C.G.A. §§ 21-2-540.
After January 1, 2010, special elections and special primaries to fill vacancies in office will continue to be governed by the schedule discussed above. However, after January 1, 2010, special elections to present a question to the voters (including bond referendums) may only be held on one of the following dates, provided that such date is at least 29 days after the date of the first publication of the call for the special election:
In odd-numbered years:
- the third Tuesday in March; or
- the Tuesday after the first Monday in November.
In even-numbered years:
- the date of and in conjunction with the presidential preference primary if one is held that year;
- the date of the general primary; or
- the Tuesday after the first Monday in November. O.C.G.A. § 21-2-540(c)(2) (as amended by HB 296, 2008 Legislative Session, effective January 1, 2010).
However, in Fulton County no county-wide bond election or school bond election in the unincorporated area of such county shall be held on any date other than the date of the November general election without a showing of irreparable harm to the electors from the use of the November date. O.C.G.A. § 36-82-1(b.1).
Conduct of Bond Referendums:
Bond referendums are to be conducted like general elections. Bond referendums are to be “held at all the voting or election precincts within the limits of the county, municipal corporation, or political subdivision and shall be held by the same persons, in the same manner, and under the same rules and regulations that elections for officers of the county, municipal corporation, or political subdivision are held.” O.C.G.A. § 36-82-2. Consequently, for county and school bond referendums, the county superintendent of elections is to conduct the elections; and for municipal referendums, whoever conducts the general elections is to conduct this special election as well (e.g., contracting county, municipal superintendent of elections, city clerk, etc.).
The county superintendent of elections is responsible for (among other things): preparing and publishing all notices and advertisements for elections (general and special); selecting and equipping polling places for use in primaries and elections; purchasing election equipment of all kinds and maintaining it; appointing poll officers and other officers to serve in elections; making and issuing rules, regulations and instructions for the guidance of poll officers, custodians and electors in elections; instructing poll officers and others in their duties; receiving from poll officers the returns of all elections; computing and certifying those results; and announcing publicly the results of all elections held in the county. O.C.G.A. § 21-2-70.
If a bond referendum is held at the time of a general primary or election, the bond issuance question is to be included on the ballot for the general primary or election. O.C.G.A. § 21-2-541. However, if the bond referendum is held on the date of the presidential preference primary, the bond referendum question should be placed on a separate ballot so that a voter is not required to use a party ballot to vote only in the referendum. 75 Op. Att’y Gen. 132 (1975).
Any person in the jurisdiction who is on the list of registered electors maintained by the Secretary of State is entitled to vote at the special election. The deadline for registering to vote in a general primary or election or presidential preference primary is the fifth Monday (if a holiday, the next business day) prior to the primary or election, and that deadline applies to a bond referendum held in conjunction with a general primary or election or presidential preference primary. O.C.G.A. § 21-2-224. However, the deadline for registering to vote in a bond referendum not held in conjunction with a general primary or election or presidential preference primary is the fifth day after the call (first publication) of the special election. O.C.G.A. § 21-2-224(b).
Preclearance Requirements Under Section 5 of the Voting Rights Act of 1965:
Section 5 of the Voting Rights Act of 1965 requires the preclearance of changes affecting voting in Georgia made since November 1, 1964. Section 5 prohibits the enforcement of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on [November 1, 1964]” until either (1) a declaratory judgment is obtained or, (2) the change has been submitted to the Attorney General of the United States and the Attorney General has interposed no objection within a 60-day period following submission. 28 C.F.R. § 51.1. Any change affecting voting, no matter how minor, must meet the Section 5 preclearance requirement. 28 C.F.R. § 51.12.
Because the Georgia law provides for the discretionary setting of the date for a special election, the date chosen is subject to the preclearance requirement as specified in 28 C.F.R. § 51.17(b). If any changes in the practices or procedures followed in the general elections of the jurisdiction are planned for the special election, these would also be subject to the preclearance requirement and would need to be submitted to the Attorney General. 28 C.F.R. § 51.17(a). 28 C.F.R. § 51.13 gives examples of changes affecting voting which would be subject to the preclearance requirement, and include: changes and qualifications for voting, registration, method of county votes, changes in boundaries of voting precincts, and changes in balloting.
Any change (e.g., the discretionary setting of the date) may be submitted in letter or any other written form and should be submitted as soon as possible after the change becomes final (e.g., when the ordinance is passed authorizing the call of election on a specified date). 28 C.F.R. § 51.20, 21. The submission should include, among other things: a letter “describing the subject change with sufficient particularity,” and stating the difference between the change and prior law or practice; a copy of the ordinance or document showing the change is final and authorized; the name, title, address, and telephone number of the person making the submission; and other information as outlined in 28 C.F.R. § 51.26, 27. Supplementary material such as copies of newspaper articles or public notices describing the proposed change may also be submitted and may facilitate review by the Attorney General. 28 C.F.R. § 51.28.
The Attorney General of the United States has 60 calendar days, not counting the day of receipt of submission, in which to interpose an objection to a submitted change affecting voting; although if the final day of the period falls on a Saturday, Sunday or a designated holiday, the Attorney General shall have until the close of the next full business day in which to interpose an objection. 28 C.F.R. § 51.9. The failure of the Attorney General to make a written response within the 60-day period constitutes preclearance of the submitted change. 28 C.F.R. § 51.42. However, if the Attorney General notifies the submitting authority within the 60-day period of a decision not to object to the submitted change, the Attorney General may later reexamine the submission during the remainder of the 60-day period and, if warranted, may interpose an objection at that time. 28 C.F.R. § 58.41-43. The preclearance procedures do provide for a submitting authority to request expedited consideration when it is necessary to implement a change within the 60-day period following submission. 28 C.F.R. § 51.34.
A copy of any such submission under the Voting Rights Act of 1965 must also be transmitted to the Attorney General of Georgia. O.C.G.A. § 36-60-11.