MR. KOJO NNAMDIWelcome back. Virginia's status as a swing state in the presidential election and its tight Senate race between two former governors, both grabbing headlines in the run-up to Election Day. But when voters in the Old Dominion head to the polls tomorrow, they'll also weigh in on a controversial ballot measure. Question 1 on the Virginia ballot would make it harder and possibly more expensive for the government to use eminent domain to take private property for public projects like roads or sewer systems.

MR. KOJO NNAMDISupporters and opponents are split largely on party lines, with Republicans calling the measure an important tool to secure property rights while Democrats say it would make roads and sewer projects more costly for taxpayers. Joining us to discuss this is Michael Pope, WAMU 88.5 Northern Virginia reporter. He joins us by way of a (word?). Michael Pope, welcome.

MR. MICHAEL POPEThank you for having me.

NNAMDIMichael, this measure is a response to a controversial Supreme Court decision that came down in 2005. What was the court ruling, and how did a few dozen states, including Virginia, respond to it?

POPEWell, the famous or infamous, depending on your perspective, Supreme Court ruling, Kelo v. the City of New London, which allowed the local government to take private land for what was essentially -- it was considered public use, but it was for private benefit. In the Connecticut example, it was for economic redevelopment. And so that Supreme Court decision prompted 44 states to enact new legislation limiting how local governments can use the power of eminent domain.

POPEAnd Virginia was one of those 44 states that has already enacted legislation to prevent governments from taking private property and using it for public gain. So the language that will be before voters tomorrow will sort of enunciate this part of the Virginia statute that's already, in effect, preventing governments from taking public property for a list of things.

POPEWhat the voters will see is a list that includes private gain, private benefit, private enterprise, increase in jobs, increase in tax revenue and economic development. But what the voters won't see is that the amendment actually takes it one step further and includes something that's not in the -- currently in the Virginia law, which is giving property owners the ability to seek damages for loss of profits and loss of access.

NNAMDI800-433-8850 is our number if you'd like to join the conversation. What is your feeling about the eminent domain measure in Virginia? Do you think the state needs better protections for commercial property owners? 800-433-8850. You said this provision would allow some commercial property owners to sue for damages if they lose profits or customers lose access to the business because of a property seizure. Could you explain that, please?

POPERight. So there are two kinds of examples that would be at issue here. One is the gas station owner in McLean, for example, who was upset that the local government did street repairs or changed the way the street worked in a way that made it more difficult for customers to drive into the gas station, under this new provision of the amendment, he could seek damages in court for loss of access to his business.

POPEAnother example might be the Old Dominion Boat Club in Old Town Alexandria that owns land that is currently rented out for parking spaces. The city of Alexandria have threatened to take that land using the power of eminent domain for flood mitigation. So, under the amendment, it's possible the Old Dominion Boat Club could seek damages for loss of profits associated with those parking spaces.

NNAMDIAnd the last two provisions, you mentioned one of them would be if it was for the purpose -- if the eminent domain is imposed or invoked for the purpose of expanding tax revenues?

POPESo the list that will be before voters of the actual ballot language says that it would prevent governments from using -- taking public property using eminent domain and using it for things like private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue and economic development. So that's one of the things specifically mentioned in the ballot language.

NNAMDIThe eminent domain measure is apparently split largely along party lines. Why do so many Republicans support it? And why do so many Democrats oppose it?

POPEWell, you know, it sort of fits into alignment with kind of traditional Republican thinking about property rights. And all the Republicans I've spoken to are definitely in favor of the amendment. They want to limit the use of eminent domain. They want to make it more difficult for local governments to use the power of eminent domain. Lots of Democrats though, at least in Northern Virginia, are very suspect of this. They're concerned that it will make public infrastructure projects more expensive.

POPEI talked to one state senator who represents Arlington, who said that there might actually be a perverse incentive here for local governments to look more closely at taking residential land versus commercial land. Like, if they're looking at widening a road, for example, and there's a residential property at one of the side of the street and commercial property on the other side of the street, these new provisions on loss of profits and loss of access might actually prompt that local government to want to take the residential land instead.

NNAMDIMichael Pope, he is our WAMU 88.5 Northern Virginia reporter. We're talking about Virginia ballot measures and inviting your calls at 800-433-8850. What is your feeling about this eminent domain measure? Do you think the state needs better protection for commercial property owners? Fairfax County voters are going to decide on a bond measure that would help pay for flood prevention after Hurricane Sandy.

NNAMDIDo you have new concerns about flood control in our area? Michael, moving down to Virginia ballot, two question or Question 2 asks approval for a measure that expands the timeframe in which the General Assembly can convene. What's that one about?

POPEThere's been very little talk about this, Kojo. And I think when voters head to the polls tomorrow, they are going to be very surprised by this one and probably will have to read the ballot language several times to get a sense of -- to what it's about. Essentially, what's at issue here is that the Virginia Constitution requires the General Assembly to reconvene on the sixth Wednesday after the session.

POPENow, the problem with this is the way the timing usually works out with the session is that falls right around Passover. So there have been several examples in recent years where the General Assembly is meeting during Passover. And the Jewish legislators are faced with a difficult choice. Do they want to be true to their religion or true to their constituents?

POPEAnd so in many cases, they've ended up working on Passover and not been very happy about that. So this amendment is written in a way that gives the General Assembly more leeway. Instead of meeting on the sixth Wednesday after the session, they have kind of a week's grace period where they could anytime within that week right around the sixth, the Wednesday after the session.

NNAMDIAnd it's apparently not controversial, but it's also not quite clear. It could confuse voters, couldn't it?

POPEWell, the way that it's written in the ballot language, the voters will not have any explanation of what I just mentioned about Passover. There's no language in there about a religious exemption. There is nothing mentioning this important Jewish holiday. Instead, the language has to do with giving the General Assembly the ability to have a one-week window where they could meet or they could delay it a week.

POPEAnd I did speak to one person who was concerned that, you know, if you already have a jaundiced view of politics and if you think these guys are up to no good, you might be looking at that ballot language and be suspicious of it and just might vote against it just because you don't want to give the General Assembly more options to essentially screw things up. But the truth of why it was put on there is because there was a Jewish member of the House of Delegates that wanted to create more leeway.

POPENow, it has to be a constitutional amendment, by the way, because this provision about the sixth Wednesday after the session is a part of the Virginia Constitution. And so the only way to change that is by having a constitutional amendment. And the only way to do that is having voters approve it, so that's why it will be on the ballot tomorrow.

NNAMDIOn to the phones now. Here is Nathan in Roanoke, Va. Nathan, you're on the air. Go ahead, please.

NATHANHi. I am a voter from Roanoke, Va.

NNAMDIYes.

NATHANAnd I voted early this year. And typically I'm very liberal, but I voted in favor of this amendment.

NNAMDIQuestion 1?

NATHANThe amendments for eminent domain.

NNAMDIYeah. Why do you vote in favor of it?

NATHANBecause I'm a big believer in property rights especially the idea that eminent domain should not be used in cases where it will limit a private enterprise even if it's, like, you know, in previous cases. I believe the case that started it was for a shopping center or something.

NNAMDIYep.

NATHANI don't agree with that. Even though that's public use, it's really for private businesses.

NNAMDIWhat do you make of the argument that Michael Pope said that opponents of Question 1 are raising that it could also impede the development of what, I guess, officials would feel is crucial infrastructure?

NATHANIt's certainly true. That's a possibility. But I feel that making it more difficult to use something and powerful than eminent domain is probably a good thing...

NNAMDIOK.

NATHAN...especially with regard to -- if they do use eminent domain, this makes it easier to fight it if you really feel like you need your property. And it makes it such that you will be able to get some more of your money back that you would have loss otherwise.

NNAMDIOK. Thank you very much for your call. And we moved on to David in Sterling, Va., on the same issue. David, your turn.

DAVIDYes. Thank you very much, Kojo. I strongly support this constitutional amendment to restrict the government's ability to use eminent domain to take private property and turn it over to other entities for commercial uses. I believe that is directly contrary to the founding principles of our country which valued private property and private rights above all else, including all the powers of government.

DAVIDWe are seeing currently examples where this is being done to further a whole host of different kinds of welfare distribution schemes. The original case up in -- I believe it was Rhode Island that went all the way to the Supreme Court was to create a broader tax base for the community. The same thing that's happening currently down in Norfolk with an electronics company that they're trying to take the man's business away from him and to turn it into a strip mall to support one of the universities down there.

DAVIDThere really isn't a valid reason for any of these. Now, in response to your question for the last caller about cases where the eminent domain is to support some infrastructure project, if the infrastructure is that critical, the government should be willing to pay the price to buy the rights, shouldn't buy the property from the current owner no matter how inconvenient it is for the government to do that.

NNAMDIOK. David, finally, we have this email on the issue from Emily in Annandale, who says, "I have two issues with the current amendment that's on the ballot. First, it replaces what are essentially two lines in the current state constitution with what is a very long paragraph. That makes me extremely worry especially because language from legislation often has unforeseen side effects. Second, this has already been passed in the legislature. There is no need to put it into the Constitution unless there is something fishy going on.

NNAMDI"In short, I think this belongs in the legislature and shouldn't be shoehorned into the Constitution." Well, Michael Pope, apparently, people are afraid that government can sometimes get involved in something fishy. You got about 20 seconds.

POPEYeah. I think what we've heard from the callers is that this amendment is likely to be very popular with voters, you know, even opponents of this constitutional amendment will privately acknowledge that when you put language before voters to limit the use of eminent domain, it's likely going to pass.

NNAMDIMichael Pope is WAMU 88.5's Northern Virginia reporter. Michael, thank you so much for joining us.

POPEThank you.

NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.