ATLANTA – In what may be the first step toward a lawsuit, an anti-TSPLOST group recently retained high-profile Atlanta attorney Pitts Carr to challenge what the group believes is biased language that Secretary of State Brian Kemp placed on the July 31 ballot.

Cobb residents likely will remember Carr as lead counsel for such plaintiffs as Butch Thompson in the lawsuit against Cobb EMC, a case that ultimately resulted in the entire replacement of the Cobb EMC board.

The ballot language raising the ire of the anti-tax group is a preamble that says the TSPLOST “provides for local transportation projects to create jobs and reduce traffic congestion with citizen oversight.”

In a June 28 letter to Kemp, Carr asks: who drafted such language, under what authority is it claimed that such language may be placed on the ballot?; were private concerns involved in the preparation and submission of this language?; and who are the private entities involved?

“I think it is very improper for anyone to use a ballot for advocacy, and this is like having a billboard in support of Referendum 1 right on the ballot,” Carr told the Journal on Tuesday.

“It would be like somebody saying, ‘Larry Burke (candidate for Cobb State Court Judge) is a really great guy,’ you know? The ballot is supposed to be completely neutral and fair in every way and to have anybody do some electioneering on the ballot is improper, but I think it’s particularly improper for the state to be the one that’s doing it or appears to be the one that’s doing it.”

Carr believes the language is not permissible under Georgia law.

“I don’t believe it is. I can’t find any basis for it,” he said.

The language is biased in favor of the proposed tax, Carr said, quoting the preamble about how passage of the tax will allegedly “create jobs and reduce traffic congestion.”

“I mean, anybody would say, ‘well hell yeah, where do I sign?’” Carr said. “But to say that the issues are extraordinarily more complicated, and for every positive that’s asserted in this preamble there are multiple negatives, and if we’re going to have preambles then the people that are interested in pointing out to the public the negatives ought to be able to have their own preamble, shouldn’t they?”

Asked if he believes the ballot issue could hold up the July 31 referendum with a possible lawsuit, Carr responded by saying he’s waiting to hear from Kemp.

“What legal options may or may not be available we’ll have to wait for the response of the Secretary of State to our inquiry,” he said.

Ifld Kemp insists on keeping the language on the ballot, then there is another matter worth considering, Carr said.

“If this does pass with this language I think there is a cloud over the result,” Carr said. “I think it’s an issue — I’m not saying that’s one hundred percent right — but I do think that’s a legitimate issue that they should be concerned about. What they ought to do is get it the hell off of there. They’ve got plenty of time to get it off and let it go forward.”

Rarely does the state legislature dictate what language is to be on the ballot, but in the case of the transportation referendum, it did, Carr said.

The legislature approved language that states “Shall Cobb County’s (or whatever Georgia county a resident votes in) transportation system and the transportation system network in this region and the state be improved by providing for a one percent special district transportation sales and use tax for the purpose of transportation projects and programs for a period of ten years?”

The voter is then directed to vote “yes” or “no.”

“The legislature seldom does this but in this case it plainly said this is the language that’s going on the ballot, the language that says ‘shall Cobb County blah, blah,’ and there was nothing in that bill that authorized anybody to fool around with the ballot language,” Carr said.

Carr has filed an Open Records Request with the state to learn who was promoting the language.

The Journal asked Kemp’s spokesman, Jared Thomas, if Kemp planned to respond to Carr’s inquiries. Thomas emailed the following statement from Kemp: “We are in receipt of the letter from Mr. Carr. Should Mr. Carr and his clients move forward with legal action, we look forward to defending our position in court.”

The group that hired Carr is a grassroots, volunteer organization called the Transportation Leadership Coalition chaired by Jack Staver of Woodstock.

“Whether you are for or against the proposed tax increase, we can all agree the ballot is sacred and neither the Secretary of State nor anyone else should be able to turn our ballot into political propaganda,” Staver said in a statement.