Section 218(d)(6)(C) of the Social Security Act (Act) authorizes 23 States and all interstate instrumentalities to divide a retirement system established by a State, a political subdivision of such State, or an interstate instrumentality after a referendum based on whether the employees in positions under that system desire Social Security coverage. The State holds a referendum among all members of the retirement system designated by the State for purposes of that referendum (see SL 30001.321).

The States authorized to use the divided-vote process (including the enactment date of amendments that permitted this coverage) are:

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  Alaska (7-20-65);

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  California (8-30-57);

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  Connecticut (8-30-57);

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  Florida (8-1-56);

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  Georgia (8-1-56);

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  Hawaii (8-1-56);

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  Illinois (1-2-68);

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  Kentucky (3-2-04);

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  Louisiana (3-2-04);

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  Massachusetts (8-27-58);

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  Minnesota (8-30-57);

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  Nevada (7-23-64);

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  New Jersey (12-20-77);

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  New Mexico (6-30-61);

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  New York (8-1-56);

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  North Dakota (8-1-56);

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  Pennsylvania (8-1-56);

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  Rhode Island (8-30-57);

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  Tennessee (8-1-56);

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  Texas (9-13-60);

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  Vermont (8-27-58);

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  Washington (8-1-56); and

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  Wisconsin (8-1-56).

While the referendum itself is a State matter, Federal law requires certain minimum conditions be met. The Governor or an official designated by the Governor must certify that the referendum met certain conditions listed below. The Governor's delegation of their certification responsibility may be general or specific, continuing or limited. The certification must specify that:

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  The vote was held by written or an electronic ballot (Federal law does not prescribe the ballot format or the voting mechanics);

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  The opportunity to vote was given and limited to the eligible employees;

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  The employees were given notice of the vote at least 90 days before the vote is to be held (Federal law does not prescribe the form of notice);

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  The vote was supervised by the Governor or by a named designee of the Governor; and

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  The retirement system was divided into two deemed retirement systems, one composed of positions of members of the system who voted for coverage and the other composed of the remaining positions under the retirement system (see SL 30001.331F).

One certification is required for each referendum held in a retirement system (e.g., if one referendum was held by a retirement system covering a number of political subdivisions, only one certification should be submitted). If a State held separate referendums for the employees of any one or more political subdivisions, institutions of higher learning or hospitals as separate retirement systems, a certification is required for each referendum held (a combined certification for each referendum may be shown on one form). The certification should identify the precise retirement system covered by the certification.

To be eligible to vote in a referendum an employee must be:

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  A member of the retirement system at the time the referendum is held and

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  In a position under the retirement system, i.e., be in an employment relationship (as distinguished from actually performing services) both at the time the notice of the referendum is given and at the time the referendum is held.

After December 31, 1959, employees who are in positions that make them eligible to join the retirement system but have not yet exercised their option to do so are considered members of the retirement system and participate in the referendum.

An employee does not lose eligibility to vote when absent from work because of illness, summer vacation, or leave of absence (e.g., teachers on summer vacation, members of the National Guard, or reservists of the U.S. military and naval services who are called up for active duty) if the employment relationship continues.

Employees who are not eligible to vote are those:

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  Who are already covered under the Agreement (e.g., a member of an absolute coverage group whose position is now being brought under a retirement system);

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  Who are not members of the retirement system;

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  Who are excluded from coverage by the required or optional exclusions;

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  Who are members of the retirement system but are not State or local government employees (e.g., cooperative extension agents of the Department of Agriculture, are not eligible for coverage under an Agreement); and

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  Who are hired after the date the 90-day notice is given and before the date the referendum is held.

Following the referendum, the State must divide the retirement system designated for purposes of the referendum into the following two separate “deemed” retirement systems:

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  A deemed retirement system consisting of the members of the system who voted to be covered in the referendum and

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  A deemed retirement system consisting of the members who did not vote to be covered in the referendum.

The State is authorized to extend coverage under its Section 218 Agreement to only the deemed retirement system comprised of those who elected coverage.

Two time limitations apply to a referendum:

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  The Agreement or Modification to extend coverage must be executed within two years of the date of the referendum and

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  Another referendum cannot be held among the employees of the same retirement system group for at least one year after a previous referendum. This prohibition does not apply where a failure to satisfy one of the referendum conditions (see SL 30001.323A) precluded the first referendum from being legally sufficient to support a valid Modification.

The one-year time limitation between referendums in Section 218(d)(3) of the Act applies only when there is a subsequent referendum within that period for the same type of coverage for the same retirement system group. It was designed to prevent immediate or repetitive referendums for the same type of voluntary coverage for the same retirement system group.