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Strict scrutiny for statutory residency requirement

Where appellant challenged the constitutionality of a statute that requires petition circulators to be qualified to vote in the referendum for which they are circulating petitions, the circuit court erred by applying a rational basis analysis and ruling that the statute was constitutional.

The circuit court should have applied a strict scrutiny analysis. The “enforcement of Code § 24.2-684.1(5) directly and substantially restricts First Amendment protected core political speech by limiting the number of circulators available to support an initiative.”


The city of Williamsburg and James City County operate a joint consolidated school division. The school board has seven members. The county’s five members are elected. The city’s two members are appointed.

Williams, a city resident and the appellant in this case, sought to circulate a petition for a referendum on whether the city’s two school board members should be elected.

The circuit court clerk accepted the petition. Williams needed 999 signatures on the petition to place the referendum on the ballot.

“On July 19, 2022, Williams submitted what was believed to be 1,301 signatures to the circuit court to support the petition. On July 20, 2022, Williams submitted an additional 286 signatures to the circuit court to support the petition. Both submissions were made prior to the 111-day deadline imposed by Code § 22.1-57.2.

“On July 25, City Registrar Tina Reitzel filed a letter with the circuit court, notifying the court that upon review of Williams’ petition, the petition contained 1,246 signatures of qualified City voters.

“However, only 13 pages of signatures were witnessed by a person ‘qualified to vote, or qualified to register to vote, in the referendum,’ as required by Code § 24.2-684.1(5).

“Reitzel explained: ‘To meet this requirement, the witness must be a resident of the City of Williamsburg.’ However, the witnesses for the other 201 pages of the petition were ‘residents of either James City County or York County.’

“Reitzel confirmed that ‘only 64 signatures were accepted as complying with the statutory requirements’ due to the failure to comply with the witness circulator residency requirement.”

Williams sought to enjoin enforcement of the residency requirement. “Williams argued in her motion that the law ‘imposes a sever[e] burden’ on her First Amendment rights and was thus subject to strict scrutiny. …

“The court ruled that strict scrutiny did not apply and found the statute nondiscriminatory and content neutral, therefore constitutional.” Williams appealed.


Williams “contests the circuit court’s application of rational basis review rather than strict scrutiny. … The City argues that the restriction on referenda petitions does not involve a fundamental right and therefore is subject to a lesser standard of review.

“Therefore, the primary issue is which tier of constitutional scrutiny applies to referenda (aka initiative) petition witness circulator residency requirements, a case of first impression for this Court. …

“Under strict scrutiny, a law interfering with the rights afforded by the federal First Amendment will generally be upheld only if it is necessary and narrowly tailored to achieve a compelling government interest. …

“Regarding state election laws and the right to engage in political speech, the level of scrutiny depends on the degree to which that right is restricted. … These restrictions can be boiled down to two categories: ordinarily reasonable or nondiscriminatory burdens which receive rational basis review, and severe or discriminatory burdens which receive strict scrutiny. …

“While there is no state precedent on the issue at bar, there is ample federal precedent. The Supreme Court has not directly ruled on the constitutionality of restrictions on the residency of petition circulators, but it has invalidated other restrictions on petition circulation.

“The Supreme Court has applied strict scrutiny to the prohibition of paid petition circulators, … a requirement that initiative-petition circulators be registered voters, a requirement that initiative-petition circulators wear identification badges bearing the circulator’s name, and a requirement that proponents of an initiative report the names and addresses of all paid circulators and amount paid to each circulator[.] …

“The Court invalidated all such requirements as impermissible restrictions on the fundamental free speech right of political expression as guaranteed by the First Amendment. …

“[T]he City wishes to enforce a requirement which would cut down the number of political message carriers, thus limiting the audience Williams may reach. … [T]he requirement here regarding the locality residency of initiative petition witnesses limits the number of registered voters Williams can reach, thus decreasing the likelihood she will be able to get her initiative on the ballot.

“Such a requirement substantially restricts Williams’ ability to engage in ‘core political speech.’ Because this restriction on political speech is a clear deprivation of a right guaranteed in the First Amendment, courts must subject it to strict scrutiny.”


“Because we find that Code § 24.2-684.1(5) significantly burdens Williams’ right to political speech secured by the First Amendment, a strict scrutiny analysis is required. We therefore reverse and remand to the circuit court to apply the appropriate constitutional analysis in accordance with this opinion.”

Reversed and remanded.

Williams v. Legere, et al., Record No. 1255-22-1, May 2, 2023. CAV (published opinion) (White). From the Circuit Court of the City of Williamsburg and County of James City (McGinty). Christopher M. Woodfin for appellant. John P. O’Herron for appellees. Christina Shelton for appellee City of Williamsburg. VLW 023-7-155, 14 pp.

VLW 023-7-155