by Paul Goldman

Does Bacon’s Rebellion recognize the validity of the 14th Amendment to the Constitution of the United States? I’m not sure and here’s why.

Had Dick Hall-Sizemore written his response to Jon Baliles’ column, “Bonding With (or Against) the People,” prior to the Civil War, he would have caught Jon with his constitutional pants down. Indeed, the Sizemore doctrine regarding the various rights of cities and counties to issue bonds did have sway among the leaders of Virginia until the famed 1966 Harper v. Virginia Board of Elections poll tax decision of the U.S. Supreme Court. At long last the leaders of Virginia had to admit the entire 14th amendment was the law of the land. They had reluctantly accepted a few years before that the due process provision gave Virginia voters first amendment protection. But Harper demanded state government accept the equal protection clause as well.

A bitter blow no doubt — 100 years after the lost cause lost — to lose again to a court dominated by liberals. To be sure, there were three dissenters who said Virginia should be allowed to promote monetary fees as a discrimination against equal voting rights. The poll tax at issue was just $1.50, a small price to pay said Virginia leaders for the right to vote. If someone couldn’t afford $1.50, then the segregationists said that person was not the kind of individual you want voting on important issues.

With this background, it will hopefully be easier to understand my puzzlement as to how Mr. Sizemore could write an article justifying a clear discrimination in the right to vote based only on the state constitution, while never mentioning the federal constitution.

His article is exceptionally well written and researched for a complicated issue. I learned a lot of historical stuff. But again: you can’t write an article about the right to vote in America without discussing the two main provisions of the 14th amendment and how they apply to the state of Virginia.

The issue at hand between Jon and Dick involves the right of citizens in Virginia to protect themselves and their localities’ public treasury from the irresponsible debt practices of their local politicians. In their wisdom, the makers of the laws and constitution of the Commonwealth decided to give the citizens in the county a way to use the automatic right to vote to protect the local public treasury but sadly denied their counterparts living in our independent cities the same automatic voting right.

To illustrate the difference, let’s discuss the move by Richmond Mayor Levar Stoney and his cronies to enact an ordinance allowing the Stoney Administration to issue $170 million in city general obligation bonds to build a new baseball stadium project for the local minor-league team. This is an unprecedented amount of city bonds issued anywhere in the Commonwealth to pay for a stadium project. Indeed, Stoney himself had long promised citizens they would never have to pay a dime for the new baseball stadium being demanded by professional baseball if the city wanted the The Flying Squirrels AA minor-league team to stay in Richmond.

Given that Richmond has the oldest and most crumbling public-school facilities on average of any city in the state, the decision to spend this money on a baseball stadium and not on fixing up the schools for the poor is controversial.

If county leaders in any county of Virginia wanted to issue an unprecedented amount of general obligation bonds to build a baseball stadium, this would not be possible unless the voters approved the issuance of the bonds in a referendum. But in Richmond, where Stoney rules the roost, city residents have no such automatic voting right. Rather, by a recent ruling in Richmond circuit court, once the Richmond City Council had authorized the issuance of these baseball stadium bonds, citizens only had the right to a bond referendum if they collected 11,112 valid signatures of Richmond registered voters in the roughly 30- day period according to the process laid out in the city charter. This is a right-to-vote task worthy of Hercules.

It takes only 10,000 valid signatures collected in roughly 3 months across the state to get on the ballot for Governor. Just 5,000 to get on the ballot for President. Only 500 to get on the ballot as a candidate for the mayor of Richmond.

Indeed, the applicable state law missed by Mr. Sizemore never actually says 11,112 signatures are required to get a bond referendum on the ballot in Richmond. But the Richmond judge decided on his own to read that into the bond referendum provision of the city charter in a ruling unprecedented anywhere in the country, as best I could tell. Like Mr. Sizemore, he discusses the federal constitutional aspect involved in the right to vote in our democracy. (Seems like a tangent. Can we just delete this sentence?)

But for current purposes, let’s stick to the basic state law duality, which gives county residents an automatic right to a bond referendum but denies the same to city residents.

Mr. Sizemore says this may not be the wisest policy, but Jon is stuck with it as are the people of Richmond unless they can get the General Assembly to change  the state constitution. That of course, was the opinion of Jefferson Davis and other leaders of the Lost Cause.

The right to vote is considered the most fundamental right we have in a democracy. Accordingly, federal protections against a state placing an unconstitutional burden on the right to vote, which includes an unconstitutional burden on qualifying a referendum for the ballot, are vital to our system of government.

Thus, the state of Virginia, as required by the federal constitution, needs to show a compelling state interest in giving the right to vote to the 70% of Virginians living in counties but deny the same automatic right to vote in a bond referendum to the 30% residing in our cities. There isn’t any.

To require Richmond citizens to get 11,112 valid signatures in 30 days to get a bond referendum when their counterparts in the county get a referendum automatically on the same issue – general obligation bonds – violates every first amendment voting case I have read. Gordon v Lance is the leading US Supreme Court case on local bond referendums. The decision gives states considerable latitude in setting requirements for bond referendums. But it clearly says those requirements, because they affect the right to vote, must be uniform across the state. The duality in Virginia’s law is self evidently not uniform.

The state of Virginia has no compelling interest, indeed no legitimate interest, in treating Richmondites and every other resident of our independent cities as second-class citizens when it comes to the right to vote on bond referendums.

I would think that after all these years, our judges, our lawyers, our politicians should be required to start their voting rights analysis with the federal constitution. We just celebrated the 80th anniversary of D-Day. The Goldmans were at D-Day.

So were the boys from Bedford, Virginia. They weren’t there for states rights. They were there to ensure the power and the glory of the rights found in the United States Constitution did not perish from this earth.

Yes, RVA will survive if the people of Richmond aren’t given the right to vote on the Stoney baseball stadium bonds. But every time you chip away at the equality of the vote, you strike one more blow against the most fundamental right of our democracy. I once had to bring a legal action against the Democratic Party of Virginia to make sure black Democrats had equal voting rights with white Democrats in our convention process. I got roundly attacked for it. But a few years later, the changes I forced in the party convention rules helped Doug Wilder break the color barrier long in place in Old Virginny.

Bottom line: you either believe in equality for all or you don’t. The Democratic leaders of Richmond talk equal voting rights. But it’s time to walk the walk, not just talk to talk. Under the city charter, they have the full right to give the people of their city  a referendum on the stadium bonds, contrary to what Mr. Sizemore claims.

But they refuse. I believe the court should order a referendum based on federal constitutional requirements. But again, there’s nothing stopping the Democrats running the city from actually showing they really believe in the equality of voting rights for their own constituents.

Jon Baliles didn’t get the constitution wrong. But in Richmond, it seems the federal constitution is in danger of becoming a lost cause.

Paul Goldman is former Chair of the VA Democratic Party and author of “Remaking Virginia Politics.”