Certification of Referendum Petition Signatures STATEMENT OF FACTS

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1 April 14, 2016 LAW OFFICES OF STEVEN M. MIYARES Steven M. Miyares, Esq East Virginia Beach Blvd, Suite 202 Norfolk, VA Phone Fax miyareslaw@gmail.com website Donna Patterson Virginia Beach Voter Registrar VIA dpatters@vbgov.com RE: Certification of Referendum Petition Signatures Dear Ms. Patterson: I write in reference to our prior telephone conversations regarding the number of signatures your office is required to certify in order for the group No Light Rail Virginia Beach to have its requested advisory referendum question placed on the general election ballot in November Both state and local law govern the authority, requirements, and procedures for any citizen or group wishing to place an advisory referendum up for a vote in a special or general election. No Light Rail Virginia Beach is seeking to place an advisory referendum on the ballot in the City of Virginia Beach for the general election scheduled on November 8, In order to accomplish that goal, the group circulated petitions for signature. Your office is responsible for certifying that the petitions were signed by a number of registered Virginia Beach voters equivalent to 25% of the number of voters who actually voted in the prior general election in the City. The following analysis will explain why your office would be required to certify approximately 16,445 signatures, which would be 25% of the number of voters in the general election held in November 2015 and not the number of voters in the prior general election from November STATEMENT OF FACTS On October 6, 2015, as a representative of the group No Light Rail Virginia Beach, I filed a copy of a proposed referendum question with the Clerk of the Circuit Court for the City of Virginia Beach. The proposed question was as follows: Should City Council of Virginia Beach spend local funds to extend Light Rail from Norfolk to Town Center in Virginia Beach?

2 Along with the filing of the copy of the petition question, as a qualified voter of Virginia Beach, I also filed a required statement providing my name, address, and name of the organization I represent ( No Light Rail Virginia Beach ). On the same day the statement was filed (October 6, 2015) the Clerk of the Court of the City of Virginia Beach certified that she had received and accepted the copy and statement. After acceptance by the Clerk of the City of Virginia Beach, No Light Rail Virginia Beach began circulating the proposed petition to gather signatures. On March 21, 2016, No Light Rail Virginia Beach filed with the Clerk of the Circuit Court of the City of Virginia Beach a petition with approximately 32,000 signatures from individuals believed to be qualified voters in the City of Virginia Beach. As of the date of this writing, the office of the Registrar of the City of Virginia Beach is in the process of certifying the signatures on the petition. STATE LAW GOVERNING ADVISORY REFERENDUM In determining the procedure for placing an advisory referendum on a ballot, we must first examine the relevant state law. Title 24.2 of the Code of Virginia governs election law generally and special elections, including the placement of an advisory referendum for an election. Unless there is a law or charter to the contrary, of the Code of Virginia governs all referenda. Under this section, no referendum shall be placed on the ballot unless specifically authorized by statute or charter. Va. Code Therefore, state law requires that the Charter of the City of Virginia Beach must specifically authorize a referendum question to be placed on the ballot by any person or group seeking to do so. In addition, requires that the date of any referendum election must be set in conformity with This law requires that a special election (including referenda) must be held on a Tuesday. Also, no special elections may be held within 55 days prior to a general or primary election and may not be held on the same day as a primary election. However, a special election may be held on the same day as a general election. Va. Code (A). This law further states that a referendum election shall be ordered at least 81 days prior to the date for with the referendum election is called. Va. Code (B). Therefore, if the referendum election in question is to be on November 8, 2016, the Circuit Court of Virginia Beach must order the referendum election no later than August 19, State law also regulates the requirements for voter petitions to call for referendum, except requirements set out in charter provisions, in this case the Charter of the City of Virginia Beach. Va. Code Prior to circulating any petition for signature, a copy of the petition must

3 be filed with the Clerk of the Circuit Court of Virginia Beach by a qualified voter of Virginia Beach along with a statement giving the name, addresses, and name of the organization represented. Va. Code (1). This is the question and statement described above as having been filed by me on October 6, Under this section of the statute, until the copy of the question and the statement were filed with the Clerk of the Circuit Court and the Clerk of the Circuit Court received and accepted the petition copy and statement, no petition could be circulated for signature. Va. Code (1). Furthermore, under this same Code section, the Circuit Court Clerk is not required to accept the petition copy and statement on the day they are filed. Va. Code (1). Indeed, the Clerk has up to 10 days to accept the petition and statement. In our present situation, the copy of the petition and statement happened to be accepted on the same day they were filed. However, the Circuit Court Clerk could have waited until October 16, 2015 to accept the statement and copy of the petition. If that had happened, no signatures could have been collected until on or after October 16, In that situation, by law it would have been a legal impossibility for any signed petition to have been filed with the Clerk on October 6, Therefore, the law clearly demonstrates that the filing of the statement and copy were not the signed petition that must be filed to have a referendum special election ordered. Once the copy and statement have been accepted by the Clerk of the Circuit Court, then the petitions shall be circulated, completed, and filed within 9 months of the date of acceptance and certification of the question by the Clerk of the Circuit Court. Virginia Code (6). In other words, the filing of the petition copy with the clerk on October 6, 2015 regulates the time limits during which signatures may be gathered and the petition filed with the appropriate clerk of circuit court. Therefore, for the petition in question in your office the first signature could not be collected until the October 6, 2015 receipt and acceptance by the clerk. In addition, the acceptance on October 6, 2015 set the closing date by which the petition must be signed and filed with the Circuit Court Clerk. In this instance, the October 6, 2015 acceptance began a nine month period that would end on July 6, Therefore, the state law is very clear. No Light Rail Virginia Beach could only begin collecting voter signatures for its petition on or after October 6, Once the group began circulating its petition for signature, it had to gather all of the necessary signatures and file the signed petition with the Clerk of the Circuit Court of Virginia Beach no later than July 6, Virginia Code clearly differentiates the filing of a copy of the petition ( (1)) to begin the 9 month signature collection and petition filing period from the filing of the actual petition signed by the required number of registered voters ( (6)). Under the clear language of the state code, the signed voter petitions could not have been filed on October 6, Any signatures filed on that day would have been invalidated as a matter of law for having been gathered before the law authorized signature collection to begin.

4 The law clearly states that the filing on October 6 was a copy of the petition. Under the facts in this case, the original signed petitions have to be filed no later than the July 6, 2016 deadline. In this instance, the signed petition was actually filed on March 21, 2016 with the Clerk of the Circuit Court of Virginia Beach. This March 21, 2016 filing date is the relevant date for the next stage of analysis. LOCAL LAW VIRGINIA BEACH CITY CHARTER As stated previously, under state law any advisory referendum must be specifically authorized by a statute or charter of the city or town where the referendum is to be held. In this instance, the governing law can be found in 3.09 of the Charter of the City of Virginia Beach. The relevant language under this section reads as follows: Upon the filing with the Clerk of the Circuit Court of the City of Virginia Beach of a petition signed by a number of qualified voters in Virginia Beach equaling 25 per centum of the number of voters voting in Virginia Beach at the last general election, as certified by the City Registrar; the circuit court of the city, by order of record, shall call for an advisory referendum taking a sense of the voters on the question proposed in the petition at the next succeeding general election. The referendum shall be conducted in accordance with the provisions of of the Code of Virginia, 1950, as amended. Charter of the City of Virginia Beach The City Charter explicitly requires that the referendum shall be conducted in accordance with state law, specifically As discussed above, state law makes clear that the signed petitions in this case were filed on March 21, The City Charter furthermore supports this conclusion by indicating that the circuit court orders the referendum after the filing of a petition signed by qualified voters. The filing of the copy of the petition on October 6, 2015 does not apply to this analysis because as a matter of law the petition could not be signed until after October 6, Therefore, both state law and the city charter clearly and explicitly establish that the copy filed on October 6, 2015 is not a signed petition. Under both the state code and the city charter, the signed petition was filed with the Clerk of the Circuit Court of Virginia Beach on March 21, 2016, which is within the required deadline period that ends on July 6, After No Light Rail Virginia Beach filed the signed petition on March 21, 2016, the Voter Registrar is required to certify that the total number of qualified voter signatures on the petition equals at least 25 per cent of the voters voting in Virginia Beach at the last general election. When the petitions were filed on March 21, 2016, the last general election in Virginia

5 Beach had been held on November 3, Therefore, the number of qualified voter signatures required for the referendum in question must be determined based on the number of voters voting on November 3, 2015, not based on voter turnout figures from some prior election. Based on the information publicly available from the Virginia Beach Voter Registrar s Office, 65,780 voters voted in the City of Virginia Beach on the November 3, 2015 general election. Based on that public information, No Light Rail Virginia Beach would have been required to collect 16,445 qualified voter signatures on the referendum petition filed on March 21, That number of signatures represents twenty-five percent of the number of voters in the last general election. CONCLUSION Based on the above analysis, I respectfully request that you certify the voter signature percentage once your office has verified signatures totaling 25 percent (16,445 signatures) of the voters who actually voted in the general election in Virginia Beach on November 3, I find no provision under the laws of the Commonwealth of Virginia or the City of Virginia Beach allowing your office to certify a voter total from any other election date. If there is some statute, charter provision, or other binding legal authority requiring you to base your certification of the number of signatures on some other standard, then I welcome further discussion in an effort to clarify any potential questions regarding the issues involved. But absent some contrary legal authority, I ask that you certify the qualified voter signatures based on the law I have discussed above. I thank you for the hard work and diligent efforts you and your office are making to ensure that this matter is completed in an efficient and timely matter that complies with the spirit and letter of the law. Sincerely, Steven M. Miyares