An amendment on this year’s ballot asks people whether sovereign immunity should be waived. If it passes, Georgians can once again sue their government in state courts.
Right now that is not possible, says attorney Don Samuel.
“If the Legislature passes a law now that nobody over 6 feet tall can vote, you can’t sue the state, you can’t enjoin that law.”
You’d need to sue in federal court instead. Samuel has argued against what’s known as sovereign immunity for years.
Sovereign immunity is a concept that dates back centuries to English law.
“And it was to prevent people from suing the king because the king can do no wrong,” Samuel said.
For much of the past decade, the state of Georgia has had a similar luxury because of rulings by the state Supreme Court that gave wider immunity to the state.
Samuel says the rulings made Georgia the only state in the country where state courts were stripped of the power to declare a law unconstitutional or not.
Twice, state lawmakers passed bills that would have waived sovereign immunity, and in both cases the governors in power vetoed the fix: Nathan Deal in 2016 and Brian Kemp in 2019.
Now the constitutional amendment on the ballot asks voters to waive sovereign immunity and give state courts the power to once again hear lawsuits against the state.
But those lawsuits would still have limits to protect taxpayers.
“It doesn’t authorize lawsuits against the state and county for money. It just authorizes lawsuits against the state and counties in order to declare laws to be unconstitutional and to enjoin their enforcement,” Samuel said.
And Georgians would no longer rely just on the federal courts if they have a grievance with the state.