2006 Election Results

National Trend Toward Property Rights Protections: Constitutional Amendments Passing Across the Country

CONTACT: John Kramer; Lisa Knepper
(703) 682-9320
November 7, 2006


Ballot Measures Results: This list consists of measures voted on by citizens this fall. Some of them are legislative referenda and some are citizen initiatives.


Arlington, Va.—Following last year’s despised U.S. Supreme Court eminent domain ruling, voters nationwide are protecting their homes through the ballot box.

Property rights ballot measures that restrict government’s power of eminent domain are passing by wide margins across the nation in response to the U.S. Supreme Court’s now infamous decision in Kelo v. City of New London, which permits the use of eminent domain under federal law to take property from one person and give it to another for private use.

“Election Day usually reveals how polarized public opinion can be as campaigns focus on highly divisive issues.  Today, however, the vast majority of voters across the country all agreed that the fundamental right to property must be protected,” said Chip Mellor, president and general counsel of the Institute for Justice, which represented the homeowners in Kelo before the Supreme Court.  “Citizens around the nation agree that the U.S. Supreme Court’s decision in Kelo was wrong.  As we’re seeing tonight’s results, this issue cuts across party lines, state borders and socioeconomic levels.”

The most permanent changes appear in state constitutions, and legislators referred a number of amendments to their constituents.  Legislators in Louisiana and South Carolina recognized that if the U.S. Supreme Court will not enforce the right to property found in the U.S. Constitution’s Fifth Amendment, then states must make sure this fundamental right is preserved in the state constitution themselves.  The Florida, Georgia, Michigan and New Hampshire legislatures went a step further and passed both statutory reform as well as constitutional amendments.  Today, the voters in all six states agreed and approved the constitutional amendments.

Additionally, eminent domain reform appeared on the ballot in another six states—Arizona, Idaho, Oregon, California, Nevada and North Dakota—through the initiative process, though the results on those measures are not yet known, since polls there have not closed.

“The American people are furious their property rights are up for grabs to the highest bidder,” said senior attorney Scott Bullock, who argued the Kelo case for the Institute.  “They understand that the U.S. Supreme Court declared open season on everyone’s property and the resulting momentum for eminent domain reform shows no sign of slowing.  The significant margins in the votes today show just how wrong a narrow majority of the Supreme Court was.”

Florida might be the greatest success story of the response to the U.S. Supreme Court’s complete evisceration of property rights.  Previously one of the worst abusers of eminent domain, government can no longer take property for so-called “blight” removal and the newly passed statutes prohibit localities from transferring land from one owner to another through the use of eminent domain for 10 years—effectively eliminating condemnations for private commercial development.  A simple majority vote of the legislature could have made exceptions for “pet projects,” but with the success of today’s constitutional amendment, each house of the Legislature must pass such exemptions by a 3/5 vote, adding an additional level of protection for Florida property owners.  It is passing by a 70-30 percent margin.

Louisiana marks the first successful post-Kelo constitutional amendment to restrict eminent domain abuse, passing at the end of September.  The amendment prohibits local governments from condemning private property merely to generate taxes or jobs and ensures that the State’s blight laws can only be applied for the removal of a genuine threat to public health and safety caused by a particular property. 

The Michigan legislature became the first state legislature to pass a proposed constitutional amendment to send to the voters.  The amendment prohibits “the taking of private property for transfer to a private entity for the purpose of economic development or enhancement of tax revenues” and requires government to prove its authority to take a piece property for blight by clear and convincing evidence.

Georgia’s new constitutional amendment requires a vote by elected officials any time a local government seeks to use its eminent domain authority for redevelopment.  This ensures that property is never taken from one private party and given to another private party without approval by an elected body directly accountable to the public.  Voters there have shown an amazing response, with nearly 85% of the electorate voting in favor of the amendment.

New Hampshire now has a constitution that prohibits taking private property “if the taking is for … private use of the property.”  This establishes in the state constitution the fundamental right the U.S. Supreme Court denied in Kelo—the right to own your property and not have it taken away at the whim of the government, except when the acquisition is for a traditional public use, like a road, school or courthouse.

South Carolina’s constitution now specifically prohibits municipalities from condemning private property for “the purpose or benefit of economic development, unless the condemnation is for public use.”  Also, an individual property must now be a danger to public health and safety for it to be designated as “blighted,” closing a loophole that enabled local governments to use eminent domain for private use under the State’s previously broad blight definition.

“Today’s election results highlight the country’s complete rejection of eminent domain for private development,” said Institute for Justice Senior Attorney Dana Berliner.  “These new laws will help ensure that cities and developers purchase land from willing sellers the old-fashioned way—through private negotiation, not government force.”  A recent report by Ms. Berliner found in the year since Kelo, more than 5,700 properties nationwide have been threatened or taken with eminent domain for private development, compared to 10,200 examples over a five-year period before the ruling—nearly triple the yearly average.

The Kelo decision was an assault on property rights unlike anything the nation had ever seen.  Yet the response to that attack has been just as tremendous.  The momentum of eminent domain reform continues—fueled by the outrage of property owners and a nation’s concern over this onslaught on fundamental rights.  Today’s eminent domain ballot measure successes are property rights victories.  States need to continue the push and do exactly what the U.S. Supreme Court refused to do:  protect homeowners from this abuse of government power.