As each Election Day approaches, many New Jersey citizens choose not to vote, or even to register to vote. It is not hard to understand why they are skeptical about the process. First, there is the seemingly corrupt, though legal, manner in which political campaigns are financed, and the resulting ability of wealthy individuals and corporations to purchase political influence. Despite alternating Democratic and Republican governors, inequalities of wealth, income and educational opportunity between different communities continue to grow in New Jersey. Add in the sense of despair and helplessness that many New Jerseyans feel about their inability to affect social and environmental problems and the absence of an effective response from a seemingly broken political system. As a result, many people believe that their votes do not matter and that they cannot make a difference, so they stop voting or otherwise participating in the democratic process.
NJ Appleseed seeks to change that reality. Our mission is to empower voters to protect fair access to the election system, to support groups seeking such access, and to pursue systemic and specific changes to enhance public participation and ensure the integrity of the voting process. Our principal goals and focus are:
- to enable public participation in government, such as through the use of New Jersey’s Municipal and County Initiative and Referendum processes;
- to monitor compliance with federal election laws, including the Help America Vote Act and the National Voter Registration Act;
- to ensure the integrity of the voting process, including but not limited to ensuring the integrity of voting systems, including electronic ones;
- to ensure that the courts are accessible to voters and grassroots groups who seek to vindicate their rights and that powerful special interests do not encroach on those rights;
- to make the political process more representative, by advocating for minor parties and for ranked choice voting (also known as instant run-off voting); and
- to eliminate the influence of developers’ money in land use and public contracting decisions and local politics in general.
Enabling the Franchise Project
NJ Appleseed designs and implements initiatives that improve access to and encourage citizen participation in elections, effect campaign finance reform and promote alternative forms of voting. Such initiatives include:
Ranked Choice Voting (RCV)
NJ Appleseed Executive Director Renée Steinhagen leads the executive team of Voter Choice NJ (VCNJ), a nonpartisan grassroots campaign created to work for ranked choice voting in NJ, which will make elections more competitive and fair and thus more democratic than the current situation, where a candidate can win with a mere plurality of support. As of mid-2021, VCNJ is focusing its initial efforts on a few municipalities, including Jersey City, to try to build local support through the enactment of trigger ordinances or Council resolutions indicating support for state legislation that would permit all localities –counties, municipalities, school boards –to adopt RCV for their elections if approved by the voters. More information about VCNJ is available on its website. https://www.voterchoicenj.org/
Two charts shared by FairVote, a national nonpartisan voting reform organization that advocates for ranked choice voting, compare RCV to alternative approaches.
Voting Methods Comparison Chart
Comparison with Automatic Runoff
Same Day Registration
In 2011, NJ Appleseed challenged the New Jersey state law requirement that voters register at least 30 days before the election. We argued that, based on modern technology, the State’s implementation of its electronic State Voter Registration System and current law requiring that registration forms be processed on “an expedited basis,” the State no longer has an interest in requiring voters to register prior to Election Day. The trial court and appellate court disagreed, and the N.J. Supreme Court denied our petition for certification in late 2016.
Rutgers University Student Assembly v. Middlesex County Board of Elections and Daniel Frankel, Commissioner of Registration of Middlesex County, A-4318-14; Supreme Court Docket No. 078044.
Fair Districts New Jersey Coalition
New Jersey Appleseed is a member of the Fair Districts New Jersey coalition, which seeks to ensure that New Jersey’s legislative districts are drawn in a way that is transparent, representative, and impartial. The coalition, led by the League of Women Voters of New Jersey, formed in late 2018, in response to legislative efforts to amend the redistricting sections of the state Constitution for the seeming purpose of locking in the Democratic Party’s partisan advantage. In December 2018, NJ Appleseed issued a statement on the proposed amendment, urging that it be rejected in favor of a plan to establish an independent, citizen-based commission for redistricting and reapportionment, rather than one based on party affiliation. Fortunately, the proposed amendment was withdrawn in the face of widespread opposition.
NJ Appleseed Executive Director Renée Steinhagen and board member Flavio Komuves spoke at several of a series of public forums held throughout the state by Fair Districts New Jersey in January and February 2019. The forums included a power point presentation entitled Redistricting Reform Best Practices for a Fairer New Jersey.
On September 25, 2019, NJ Appleseed joined with other members of the coalition in a press conference about the release of the coalition’s own report about the practice of gerrymandering and the need to amend the New Jersey Constitution to establish a process in accordance with the following principles:
- A more independent, representative redistricting commission that minimizes partisanship, reduces the level of political influence over the redistricting process and includes the voices of ordinary citizens with no vested interests in a final map.
- Transparency and accountability measures that open up the redistricting process to the public; make data, resources, and drafts of maps publicly available; and require redistricting reports that justify all map-making decisions.
- Cooperation among redistricting commissioners so a final map is approved with more than a simple majority vote.
- A set of clear line-drawing rules ranked in order of priority to guide redistricting commissioners and provide checks against attempts to manipulate boundary lines for political gain.
- A racial equity provision that reinforces the principles of the Voting Rights Act to protect the voting rights and voting strength of New Jersey’s communities of color.
- Protections for communities of interest within the redistricting process, which would require ample public hearings and the solicitation of public input across every part of the state.
- Resources to ensure a complete and accurate Census count in New Jersey.
- An end to prison-based gerrymandering, a discriminatory practice that counts incarcerated individuals at their prison address for legislative redistricting purposes.
The Monmouth-Murray Proposal
In July 2019, a group of academics and lawyers including Patrick Murray, Director of the Monmouth University Polling Institute, released “Improving New Jersey’s Legislative Apportionment Process,” containing a proposed constitutional amendment regarding NJ’s state legislative redistricting process. That proposal would, in the view of NJ Appleseed, improve the current process somewhat but fall well short of the reforms that we believe are necessary, as discussed in the statement we prepared in response.
Jersey City Ward Redistricting Litigation
NJ Appleseed is co-counsel in a lawsuit filed in March 2022 that challenges the Jersey City ward map adopted in January 2022 based on the results of the 2020 Census. We represent the Downtown Coalition of Neighborhood Associations, the Democratic Political Alliance and Jersey City United Against the New Ward Map, as well as multiple neighborhood and block associations: the Greenville Neighborhood Alliance, Friends of Berry Lane Park, Lafayette Neighborhood Association, Pershing Field Neighborhood Association, Sgt. Anthony Neighborhood Association, Gardner Avenue Block Association, Lincoln Park Neighborhood Watch, Morris Canal Redevelopment CDC, Harmon Street Block Association and Crescent Avenue Block Association. We also represent Ward F Councilman Frank Gilmore, whose ward was allegedly grossly reconfigured to remove his supporters in retaliation for his support for more affordable housing. The first-of-its-kind lawsuit in New Jersey alleges that the new map carves up long-standing city neighborhoods, ignores natural geographic dividers, and even splits buildings in half, in violation of basic principles of fair representation and communities of interest that are embedded in the law’s “compactness” requirement. The lawsuit seeks an order invalidating the ward map for violating the Municipal Ward Law and the NJ Constitution, along with a declaration that it violates the free speech and associational rights of Gilmore and his constituents. We ask the court to set a reasonable deadline for the map to be redrawn in a way that complies with statutory law and constitutional requirements.
The defendants, the Jersey City Ward Commission and its chairman, moved to dismiss in May 2022. Our Brief in Opposition was filed on July 14, 2022. The court granted the motion and dismissed the lawsuit on August 25, 2022. It was a disappointing but not shocking decision given that the case is one of first of impression. On November 28, 2022, we appealed, arguing that the suit raises significant legal issues and posits serious constitutional harms concerning the right of voters to fair and effective representation and that the court has an obligation to protect voters from the abusive maneuvering alleged, which has caused serious harm to the social and political fabric of Jersey City. The fact that no New Jersey court has dealt with the MWL or the New Jersey Constitution in the context of allegations of partisan gerrymandering, is no excuse to abdicate the court’s responsibility to voters and residents of Jersey City, and it is no excuse to effectively render the Municipal Ward Law meaningless.
This January 2019 memorandum prepared by NJ Appleseed looks at redistricting reforms that have been adopted in six other states: California, Arizona, Colorado, Iowa, Michigan and Washington.
This February 2018 policy brief from The Conference Board, Let the Voters Choose–Solving the Problem of Partisan Gerrymandering, is also informative.
NJ Appleseed Executive Director Renée Steinhagen testified on March 26, 2018, before a Senate Committee in support of S-549, which would allow early voting. She suggested some changes, however, including requiring municipalities to provide early voting in local elections, as in state-wide races, rather than giving them the option because such uniformity is more consistent with equal protection and helps with voter education, knowledge and transparency. Steinhagen further requested that early voting should apply to runoff elections too and that poll worker compensation should be raised from the sub-minimum wage $5.77 per hour provided. Lastly, she pointed out that a provision allowing the Secretary of State to make adjustment to statutory voting law via regulation to effectuate the legislation violated the constitutional principle of the separation of powers.
On June 28, 2022, NJ Appleseed joined with more than two dozen other consumer, labor, environmental and social justice advocacy groups in opposing legislation that would undermine existing pay-to-play protections. In a letter addressed to Governor Murphy, Senate President Scutari and Assembly Speaker Coughlin, we urged that they rescind their sponsorship of S-2866/A-4372 and refrain from posting it for a vote because the bill would increase the limit on political contributions and also limit the ability of local governments to adopt their own ethics rules. The legislation was subsequently pulled from floor votes in both houses. The other signatories included NJ Citizen Action, NJ Institute for Social Justice, NJ Policy Perspective, Food & Water Watch, VoterChoice NJ and NJ Working Families party.
Processing Registration Forms and Counting Provisional Ballots
For years, students at Rutgers University in New Brunswick would register to vote and later show up at the polls only to find that their names were not on the election rolls. In November 2012, several students challenged the rejection of their provisional ballots before the Middlesex County Board of Elections. The Board split and a judge broke the tie against the students. NJ Appleseed filed a prerogative writ action on behalf of one of those students and took the matter to trial only to have the judge find that the Board’s retroactive acceptance of that student’s ballot as valid was sufficient to deny injunctive relief for all the systemic problems we uncovered through our discovery efforts.
Natasha Marchick v. Middlesex County Bd. of Elections, MID-L-0038-13 (2013).
We worked with the Constitutional Rights Clinic at Rutgers Law School-Newark for years to enforce the federal Motor Voter law (1993), which took effect in 1995 and required states to offer voter registration opportunities to people applying for driver’s licenses and public benefits. Indeed, one of the first cases brought in the mid-1990s by the newly founded NJ Appleseed challenged the State’s refusal to produce documentation of its efforts to register people at social welfare agencies. The matter was settled and it appeared that New Jersey was, in fact, registering people despite its failure to report any data to the federal government.
Juan Cartegena v. State of New Jersey.
Mail-In/Absentee Ballot Fraud
Though the ability to vote by mail, without justification, may be considered an expansion of voting rights, it provides an opportunity for political campaigns to target voters, and in some instances “steal” or “compromise” a citizen’s vote. In Hoboken, vote-buying has been going on for years in senior citizen and public housing buildings. The issue arose in a pair of cases where NJ Appleseed represented the Hoboken Fair Housing Association in fending off an effort by landlords to overturn the results of two referendum elections where tenants’ interests prevailed.
Our involvement began when landlords challenged the outcome of a Nov. 6, 2012, referendum in which a change to local law to allow vacancy decontrol—and thus more rent increases—was narrowly defeated, by about 50 votes of the 16,000 cast. Proponents sought to invalidate the result because some voters, displaced by Hurricane Sandy, which occurred shortly before Election Day, voted elsewhere using provisional ballots, which did not contain the public question. Rejecting our argument that those voters had no expectation of voting on local Hoboken issues in that election, the judge invalidated the referendum, leading to a revote on the Public Question in 2013, when it was once again defeated. Landlords again asked a court to throw out the result, this time on the ground that some mail-in ballots were wrongfully disqualified. They failed, after we showed that many of those ballots were filled out by two people working for the landlord-sponsored campaign and were, thus, properly not counted.
As a direct result of NJ Appleseed’s work on the case, four people were charged with using the U.S. mail in a vote-buying scheme in connection with Hoboken’s 2013 municipal election. Acting at the instructions of Frank Raia, a real estate developer and then-candidate for Hoboken City Council, the other three allegedly promised to pay and did pay certain Hoboken voters $50 for casting mail-in ballots in support of the rent control referendum and for Raia and certain other candidates. On June 25, 2019, a federal jury convicted Raia of conspiracy to violate the Travel Act. The other three have pleaded guilty to their roles in the conpiracy. They face up to 5 years in prison and a $250,000 fine.
In re Contest of the November 6, 2012 Election Result for the City of Hoboken, Public Question No. 2, Docket No. A-3218-12 (2013); and
In re Contest of the November 5, 2013 Election results for the City of Hoboken, Public Question No. 1, Docket No. HUD-L-5676 (2013).
Working with a candidate who lost a close election for the Roselle City Council, NJ Appleseed challenged more than 30 mail-in ballots that appeared on their face to be voted by one individual. We won the election contest, and the decision was affirmed on appeal.
In the Matter of the Primary Election Held on June 6, 2016 for the Office of Council Person in the Borough of Roselle, A-1020-06 (2007).
Security of Elections
Paper Trail Legislation
On May 23, 2018, NJ Appleseed Director Renée Steinhagen presented testimony to the Assembly State and Local Government Committee in support of A-3991, the Elections Security Act, which would establish a demonstration program in three counties to transition to a paper ballot voting system utilizing optical scanners. NJ Appleseed supports the bill with some proposed revisions, including the addition of a deadline for evaluating the program and determining whether and with what changes, if any, to expand beyond the initial counties and the appropriation of funding to purchase appropriate equipment and to train poll workers and educate voters on how to use it.
On June 14, 2018, NJ Appleseed submitted the same testimony in support of S-2633, the Senate version of the Elections Security Act, along with an additional statement.
Voting Audit Legislation
NJ Appleseed worked with members of the Electronic Verification Network to draft a statistical audit bill, S-507, that was introduced, sponsored and advocated for by Senator Nia Gill, D-Essex. It passed both houses and was signed into law by Gov. Jon Corzine in January 2008. Nevertheless, the resulting law, P.L. 207 c. 349, codified at N.J.S.A. 19:61-9, has not been put into effect because vote audits are not possible until NJ switches to voting machines that produce a verifiable paper trail, as also required by law.
Timing of Special Election
When U.S. Senator Frank Lautenberg, a Democrat, died in June 2013, Gov. Chris Christie, a Republican, scheduled a special election to replace him for Oct. 16 of that year, rather than wait until the general election on Nov. 5. Three citizens sued to block the special vote on the grounds that having two separate elections only weeks apart wasted public funds and would confuse voters. NJ Appleseed filed an amicus brief arguing that it was neither feasible nor lawful for there to be two statewide elections within 20 days of each other and that the logistics of holding the general election so soon after the special one, threatened the integrity of the latter. The Appellate Division refused to void Christie’s Writ of Election and the NJ Supreme Court declined review. The amicus brief filed in the Supreme Court detailed the administrative procedures that need to be completed both before and after an election with respect to the security, accuracy and proper programming of the electronic voting machines.
Grillo v. Christie, A-4648-12.
Public Financing of Elections
Amicus in Arizona Case
NJ Appleseed joined with the Campaign Finance Center, Public Citizen, the League of Women Voters, the Sierra Club and other organizations in an amicus brief to the U.S. Supreme Court supporting the right of states and municipalities to control their own elections and enact campaign finance reform in order to restrain the role of money. In a June 2011 opinion by Chief Justice John Roberts, the Court ruled 5-4 against our position, striking down the State of Arizona’s matching funds scheme on First Amendment grounds. The Arizona law aimed to level the playing field by supplying more money to publicly funded candidates who were outspent by privately financed opponents. The majority found no sufficiently compelling public interest to justify what it saw as a burden on speech. Justice Elena Kagan’s dissent, on the other hand, joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, saw the Arizona law as promoting the First Amendment’s core purpose by enhancing the “opportunity for free political discussion to the end that government may be responsive to the will of the people.”
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011).
Amicus in Ocean City Case
In 2006, Ocean City residents tried to get the City to pass an ordinance that would set up a publicly funded campaign trust. The City Council refused to introduce the ordinance after being informed of the opinion of the NJ Department of Community Affairs that the City lacked authority to enact such a program due to preemption. The residents filed a complaint seeking a declaratory judgment that the Council did have such authority but lost in the trial court. On appeal, NJ Appleseed filed an amicus brief in support of them on behalf NJ Citizen Action, Blue Wave NJ, Public Campaign and the Brennan Center for Justice. Unfortunately, the Appellate Division, finding no justiciable controversy, declined to decide the question in an unpublished opinion in 2009.
Fenichel v. City of Ocean City, A-5933-06, OCN-L-548-06.
Opening Elections to Third Parties
With the Constitutional Rights Clinic at Rutgers University Law School in Newark, NJ Appleseed presented a constitutional challenge to the state’s definition of a political party. Under that definition, third parties had to receive at least 10% of the votes cast in the most recent General Assembly election in order to receive a host of privileges provided to recognized political parties. Mid-way through the litigation, the plaintiffs focused their attention on the ability of a political party to register and identify its voters and ultimately secured that right for what we argued were common law political parties. The trial court decision was affirmed in a published appellate opinion.
Council of Alternative Political Parties v. New Jersey Republican Committee and New Jersey Democratic State Committee, 344 N.J. Super. 225 (App. Div. 2001).
On behalf of the Green Party, Libertarians and other third parties, NJ Appleseed presented a successful constitutional challenge to the State’s requirement that those who circulate candidate petitions must live in the district where the candidate is running for office. The case, which was resolved by consent judgment in October 2007, also resulted in other changes that helped level the playing field for third-party candidates, with accompanying revisions to voter registration forms and direct nomination petitions.
Green Party of New Jersey v. State of New Jersey, Div. of Elections, MER-C-125-06.
In March 2018, a published Appellate Division ruling, EON v. Guadagno, A-330-15, demonstrated the impact of the Green Party case. The EON court upheld the award of legal fees to a community group that succeeded in challenging the constitutionality of the district residency requirement. The appellate court agreed with the trial judge that the EON case “changed the landscape of election law in New Jersey” and was built upon the consent order in Green Party.
Article–NJ Appleseed Executive Director Renée Steinhagen: “Giving New Jersey’s Minor Political Parties a Chance: Permitting Alternative Voting Systems in Local Elections,” published in New Jersey Lawyer (August 2008).
Improving the Administration of Elections
NJ Appleseed Executive Director Renée Steinhagen with co-author A. Crozier: “The Weak Link: Poll Workers–Their Recruitment, Training, And Management” (October 2008).
The Database Dilemma: Implementation of HAVA’s Statewide Voter Registration Database Requirement, prepared by NJA in conjunction with national Appleseed and the Nebraska, Texas and Washington Appleseed affiliates and with the assistance of the Brennan Center for Justice and the Latham & Watkins law firm.
Voting Rights Booklet
Upon passage of the Help America Vote Act, NJ Appleseed organized a coalition of good government groups interested in advancing voting rights in New Jersey. The Coalition produced a booklet to guide our advocacy efforts over the next few years.
NJ Citizens Coalition for Implementation of HAVA, Making New Jersey’s Votes Count (February 2004).
Facilitating Local Initiative and Referendum Project
NJ Appleseed assists community groups in preparing initiative and referendum (I&R) petitions and conducting their campaigns. In addition to our counseling role, we also take a litigation role, contesting municipal action or inaction that often occurs when the petition challenges the status quo.
In the spring of 2020, COVID-19 made it more difficult and dangerous to gather and submit in person the signatures needed for I&R. On behalf of Food & Water Watch, which was seeking to initiate community aggregation programs for renewable energy in more than a dozen NJ municipalities. NJ Appleseed wrote to Governor Phil Murphy on April 14, 2020, asking that he allow the electronic signing and submission of referendum petitions, as he had already done for candidate petitions by way of executive orders. Murphy did so, issuing Executive Order No. 132 on April 29, 2020. In addition to allowing the collection of signatures via an online form and the electronic submission of petitions, it dispensed with the requirement that a petition circulator provide a notarized affidavit attesting to the validity of the signatures on the petition and the process by which they were gathered and allowed use of a signed statement verifying that information instead. The last page of the petition drafted for the Food & Water Watch campaign in Cherry Hill illustrates the replacement of the notarized affidavit requirement with a verified statement.
The Appellate Division’s opinion of March 9, 2021 in Fuhrman v. Mailander, was the first by a NJ court to apply the doctrine of equitable estoppel to allow a statutorily deficient (in form and signature) petition to go forward based on a clerk’s failure to properly inform the Committee of Petitioners of such deficiencies. The decision, which is precedential, failed to set forth, however, what the law does require and NJ Appleseed was concerned that it might create confusion. So we wrote a letter on March 25 to the three judges who decided the case, suggesting they clarify the decision by adding a footnote or endnote setting forth the proper procedure. We then were informed that we should make the request by way of motion to intervene, which we filed on May 3, 2021, including a letter brief and certification. The Appellate Division denied the motion without opinion on May 26, 2021.
Localities where we have assisted I&R efforts include:
We represent a Committee of Petitioners comprised of five members of Residents for a More Equitable Asbury Park who, in July 2018, submitted a petition seeking to change Asbury Park’s form of government. Currently, it has five Council members, all elected at-large in a nonpartisan election held in November with the potential for a runoff if no candidate receives more than 50% of the vote. The petitioners seek to have the City divided into three wards, each with its own Council member, plus two-at large members, all chosen through partisan elections, including June primaries, with no provision for run-off elections. The City Clerk advised us in an August 15, 2018 letter that enough signatures had been submitted and she would certify the Petition to the City Council for a vote in November but she mischaracterized the petition as a “Referendum” petition” under N.J.S.A. 40:69A-185 that needed signatures of at least 15% of registered voters who voted in the last election where General Assembly candidates were running. Renée Steinhagen wrote on August 20, 2018, to correct those errors: It is an “Initiative” petition seeking a referendum vote pursuant to N.J.S.A. 40:69A-25.1 and 40:69A-184 and requires only 10% of those registered voters.
NJ Appleseed assisted the local chapter of the NAACP in drafting a petition seeking to ensure that the public’s right to referendum was intact in the event that the State decided to privatize Atlantic City’s water authority. As a result, the Atlantic City Council adopted An Ordinance to Ensure Public Participation in July 2017. Subsequently, in December 2017, the state-appointed overseer for Atlantic City announced that there was no plan for privatization.
NJ Appleseed filed a motion on Feb. 24, 2020, for permission to appear as amicus curiae in Atlantic City Democratic Committee v. Atlantic City Residents for Good Government, ATL-L- 496-20. The state court suit seeks to block a public referendum vote scheduled for March 31, 2020, on whether to change Atlantic City’s form of government, based on alleged deficiencies in the petitions supporting the referendum and how the signatures were gathered. If approved, the referendum would shrink the City Council from nine members, six of whom represent specific wards, to five at-large members who would appoint a manager to run the city rather than having a mayor elected directly by the people. The new form, unlike the current one, would not allow initiative and referendum, which Atlantic City residents currently enjoy under the Faulkner Act. Even though NJ Appleseed does not support the change in government, and in particular the loss of the right to initiative and referendum (see attached opinion piece), we got involved to defend the right of Atlantic City voters to decide the issue for themselves rather than have the referendum squelched on spurious grounds. Our amicus brief argues for dismissal of the suit primarily on the basis that none of the alleged defects in the petition process violate the 1923 Council-Manager form of government, which governs this petition. Earlier in this process, NJ Appleseed represented Civic Associations of Atlantic City United with respect to its request to place an interpretative statement on the ballot to ensure that voters understood what a yes vote meant and what a no vote meant.
On March 11, 2020, the judge granted us amicus status and refused to stay or postpone the referendum. Subsequently, however, it was postponed on account of the COVID-19 pandemic and took place entirely by mail. Ballots had to be postmarked by May 12 and received by May 14. As of the night of May 12, the tally was 3,275 opposed and 985 in favor. Though not all votes were in and counted at that point, the voters’ rejection of the attempt to make the City’s government less democratic and less accountable was so overwhelming that its proponents conceded defeat.
NJ Appleseed participated as an amicus in support of a Committee of Petitioners in Camden who sought passage of an ordinance blocking the dissolution of Camden’s police department and its replacement by a regional or county-wide force. The Mayor and Council President convinced a trial judge to enjoin the initiative on the grounds that it unlawfully restrained the City’s legislative power The Appellate Division reversed and on appeal to the NJ Supreme Court, we submitted an amicus brief urging affirmation of the Appellate Division decision. We argued that the proposed ordinance did not violate the common law principle that one legislature cannot unlawfully bind a future legislature because that principle, developed in the context of ordinances creating financial commitments beyond the authorized term of a legislature, did not apply. The Committee’s initiated petition was an ordinary enactment with only “inertial” force against future lawmakers, and it was not impossible or unusually burdensome for future City Councils to amend or repeal it. The Supreme Court agreed, finding no unlawful divestment of legislative power or preemption. It did not, however, allow the initiative to go forward because circumstances had changed during the pendency of the case, with the regionalization having been effected. The Committee could proceed only with a new initiative and revised ordinance reflecting the current situation.
Redd v. Bowman, 223 N.J. 87 (2015).
NJ Appleseed is providing legal advice to a group of Edison residents who seek to use the process of initiative and referendum to block the Township of Edison from privatizing its water and sewer utilities. As part of that process, the group circulated a petition that would require the amendment of certain ordinances to require that Edison retain ownership of and operate both systems. Following submission of the petition, which had more than 3,500 signatures, the Township Council voted 4-3 to hold a special election on the issue. On September 10, 2019, voters overhelmingly approved the ordinance, which drew 84% support. Edison thus becomes the third U.S. municipality, following Northampton, MA and Baltimore, MD, to ban water privatization outright and ensure public control of its water and sewer systems. And it is the first community in the country that already had privatized water to do so.
In a related matter, the township has taken the position that it lacks the authority to enact an ordinance adopting a particular leasing agreement (to privatize its water and sewer treatment systems) which by its terms would not become effective unless submitted to the voters for approval. On May 1, 2019, we provided an opinion letter advising the committee of petitioners that the township does, in fact, appear to have such authority under the relevant case law.
In 2011, NJ Appleseed initiated a prerogative writ action on behalf of a Committee of Petitioners from Gloucester after the Township Clerk refused to certify their petition for an anti- Pay-to-Play ordinance. Ultimately, the Committee was forced to defend against claims that it had committed fraud and also that it failed to file properly notarized affidavits from those who had circulated the petition because the notary was licensed in Pennsylvania rather than New Jersey. The fraud claim was defeated at trial but the trial court held that in submitting corrected circulator affidavits, copies of the petitions should be attached. The Appellate Division affirmed in an expedited appeal.
Brief in Support of Order to Show Cause in Trial Court.
Appellate Brief and Reply Brief.
City of Hoboken
NJ Appleseed represented the Hoboken Fair Housing Association in support of its referendum seeking to repeal certain amendments to local rent regulation laws. The amendments limited the remedies for tenants in rent-controlled units seeing to be repaid for rent overcharges. The petition lacked a sufficient number of signatures on its face because the City Clerk had provided the Committee of Petitioners with incorrect information about the voter turnout in the last General Assembly election which determines how many are needed for an initiative. When the Committee collected additional signatures to meet the statutory requirement, the Clerk rejected them as too late. The matter went up and down in the courts including emergent appeals, with the Appellate Division eventually holding that Hoboken violated the Faulkner Act but not the NJ Civil Rights Act. The Committee ultimately prevailed in the NJ Supreme Court, however, which found that both laws were violated and that NJ Appleseed along with its pro bono attorney and board member, Flavio Komuves, were entitled to legal fees.
Tumpson v. Farina, 218 N.J 450 (2014), aff’g and rev’g in part 431 N.J. Super.164 (2013).
Supreme Court Brief
Appellate Division Brief
Appellate Division Reply Brief
Law Division Brief
In 2004, we represented People for Open Government (POG), who had submitted a petition to initiate an anti-Pay-to Play ordinance in Hoboken. The City Council rejected it and then passed its own weaker ordinance, which it attempted to place on the November 2004 ballot along with the petitioners’ more stringent proposed ordinance. After the court denied the City’s attempt to put its proposed ordinance to referendum, the court also enjoined the City from asking the County to put POG’s proposed ordinance on an entirely separate machine.
People for Open Government v. Inclan, Docket No. HUD-L-4812-04 (2004).
Brief in Support of Order to Show Cause to Enjoin Clerk from Placing Weaker Ordinance on Ballot.
NJ Appleseed assisted a group of Jackson Township taxpayers in drafting a petition for an ordinance to establish an in-house counsel department which could do most of the town’s legal work, including work for the Board of Education. The purpose of the Ordinance was to save taxpayers the cost of hiring outside lawyers and it was based on recommendations made in a report exploring ways to make the Township administration more efficient. The Township Council unanimously declined to adopt the Ordinance and the Mayor and Council sought a declaratory judgment to prevent it from appearing on the ballot. Their position was that sharing services with the Board of Education was illegal. The court agreed and refused to sever the shared services provision so that the rest of the initiative could be put to the voters, even though the ordinance provided for severability. In a holding of first impression, the Appellate Division refused to authorize the severance. It also rejected the petitioners’ view that courts should not entertain pre-election challenges to citizen initiatives because the issues are not ripe or at least severed the problematic portions of the proposed ordinance. A petition for certification filed by NJ Appleseed, together with Flavio Komuves of Zazzali, Fagella, Nowak, Kleinbaum & Friedman, was denied.
In the Matter of an Initiative Petition for the Adoption of An Ordinance to Amend Jackson Township Administrative Code, 437 N.J. Super. 203 (App. Div. 2014).
In 2008, NJ Appleseed assisted Civic JC in drafting a petition to initiate an ordinance barring City Council members from receiving two full government salaries simultaneously. The citizens did not submit a petition with a sufficient number of signatures, and never re-submitted the petition.
Ordinance Amending the Code of the City of Jersey City Related to Public Employment of Members of the Governing Body.
City of Newark
We assisted a local group, Homes for All Newark, a coalition of housing advocates and renters, in drafting a petition seeking to tighten Newark’s rent control law. The petition was adopted by the City Council on Sept. 5, 2017, without going to the ballot. The resulting ordinance, 6PSF-a(s), amended Chapter 2 of the City of Newark Municipal Code to make it more difficult for landlords to raise rents. They must now spend 12 months’ worth of rent to rehabilitate a vacant apartment in order to raise the rent by up to 10 percent. The ordinance rolled back a change in the law. adopted only months earlier, in March 2017, that allowed landlords to increase rent by up to 20 percent after spending only eight months’ worth of rent on renovations.
NJ Appleseed Letter to Newark City Clerk About Petition.
City Clerk Documents.
Another provision of Ordinance 6PSF-a(s) adopted on Sept. 5, 2017, was that it gave any party dissatisfied with a decision by the Newark Rent Control Board regarding a Tax Surcharge Application the right to appeal in the first instance to the Municipal Council as an alternative to having to go directly to the Law Division of the Superior Court. The provision was meant to help level the playing field between landlords and tenants, who often lack the resources, including legal counsel, needed to pursue an appeal in court.
In August 2019, the Municipal Council passed, and Mayor Ras Baraka signed into law, an amendment to the 2017 ordinance that eliminated the right of appeal to the Council, leaving a court appeal the only option. The City’s action violated a state law, N.J.S.A. 40:69A-196, that prohibits the amendment or repeal of an ordinance adopted by way of the Initiative and Referendum process within three years of its adoption, except by a vote of the people. On October 4, 2019, NJ Appleseed sued the City of Newark on behalf of Homes for All Newark and individual members of the 2017 committee of petitioners. Among other relief, the Complaint in Homes for All Newark v. Louis, ESX-L-7289-19, asked the court to invalidate the amendment, order the Council to submit it to voters in a public referendum at the next general or regular municipal election, and prohibit the Mayor from taking any action to enforce or implement it until such time as the public had approved it. We moved for summary judgment in October 2020 and in July 2021, Homes for All reached an agreement with the City to expand its Right to Counsel ordinance to ensure free representation to low-income residents in Superior Court appeals of rent control board decisions.
Starting in 2012, NJ Appleseed helped the Newark Water Group use the Initiative and Referendum process to prevent the City from privatizing its water system. The petition supported an ordinance compelling the dissolution of the Newark Watershed Conservation & Development Corporation (“NWCDC”), the quasi-public entity that maintained the city’s watershed property and operated the treatment plant, and reconstituting the Newark Water Department. After the City Council adopted the ordinance and the Mayor of Newark sued the City Council and the Committee, we defended the Committee of Petitioners.. When the NWCDC intervened in support of the Mayor’s challenge, we counterclaimed against it and its trustees for unlawful operation. Although the Ordinance was found by a judge to be unlawful, the NWCDC was forced into receivership. It ceased to operate in 2013 and its functions have been transferred to Newark’s Water and Sewer Department.
An ongoing problem with lead contamination in Newark’s water refocused media attention in 2019 on the corruption and mismanagement that led to the NWCDC’s demise and which the Newark Water Group was instrumental in helping to uncover. The resulting news articles include this one and this one, featuring comments by Newark Water Group members Guy Sterling and Brendan O’Flaherty, respectively.
In re Initiated Petition regarding a Proposed Save Our Water Ordinance, ESX-L-6649-12 (2012-2014).
Brief in Opposition to Order to Show Cause.
Brief in Support of Motion to Transfer and Amend.
Brief in Opposition to NWCDC Motion to Compel Funding.
Brief on NWCDC Expenses.
Reply Brief on NWCDC Expenses.
NJ State Comptroller Report on NWCDC.
Analysis of NWCDC Activities by Newark Water Group (“Hog Wild”).
Together with the Constitutional Rights Clinic at Rutgers Law School, NJ Appleseed helped a group of Newark voters in drafting an ordinance that would provide them with the opportunity to speak at City Council meetings. People who wished to speak during the open comment portion of meetings had to sign up five days in advance and could comment only on matters up for a vote. Although the trial court dismissed the case on a now-defunct distinction between “administrative” ordinances and “legislative” ordinances, the Open Public Meetings Law was amended soon after to insure the right to public comment. P.L. 2002 c. 80 (bill no. A-332), which passed unanimously, provides that aside from limited exceptions, “a municipal governing body shall be required to set aside a portion of every meeting of the municipal governing body, the length of the portion to be determined by the municipal governing body, for public comment on any governmental issue that a member of the public feels may be of concern to the residents of the municipality.”
Baraka v. Marasco, Docket No. ESX-L-2820-00 (October 2000).
Memorandum in Opposition to Motion to Dismiss.
New York Times article about the case.
We intervened on behalf of a group of Newark residents to defend the City’s right to present a nonbinding question on the November 1995 ballot asking voters to identify the prospective 1996 presidential candidate they felt was “most responsive/interested to the needs of urban communities.” A number of cities throughout the U.S., including Boston and Baltimore, were planning to hold similar referenda as part of the CityVote project, which was meant to focus the primary selection process more on the needs of cities. Newark won in the trial court but the Appellate Division reversed on an emergent appeal brought by the County Clerk, who refused to place the question on the ballot.
City of Newark, Robert Marasco v. County of Essex, Docket No. ESX-11470-95 (1995).
City of New Brunswick
In a series of cases over a period of two years involving two separate petitions, we represented Empower Our Neighborhoods (EON), a grass roots New Brunswick community organization that was attempting to make the City Council more responsive. They proposed a change from a Council with five at-large members to one with nine members, six of whom would represent wards, with the other three elected at-large. Although victories were achieved in court, the referendum lost by a narrow margin and the Legislature in 2009 amended state law to impose a 10-year frequency restriction on change-of-government petitions. In 2011, the Senate unanimously approved a bill that would have overturned the restriction but the bill, S-1353, failed to move in the Assembly.
Empower our Neighborhoods v. Torrisi (EON III), MID-L-7460-09.
Empower our Neighborhoods v. Torrisi (EON II), MID-L-10613-08.
Empower our Neighborhoods v. Torrisi (EON I), MID-L-6408-08.
2008 Mandamus Complaint EON I).
2009 Mandamus Complaint (EON III).
Brief in Support of Motion for Summary Judgment (EON II).
Brief and Reply Brief in Support of Order to Show Cause (EON III).
Defendants’ Answer and Opposition to Order to Show Cause (EON III).
Appeal Brief (EON III).
Trial Court Decision (EON II).
NJ Appleseed Testimony in Support of Legislation to Undo 10-Year Frequency Restriction, S-1353 (December 6, 2010).
City of Orange
In 2017, NJ Appleseed defended the Committee for an Elected Orange Township School Board when the Board of Education sued to block the Committee’s petition to reclassify the school district from one with an appointed school board to one elected by the voters. After a trial judge ruled in favor of the Committee, we successfully defended an emergent appeal a week before the November 2017 referendum, with the result that the question went to the voters of Orange, who approved the reclassification.
Subsequently, NJ Appleseed asked the court to award legal fees as a sanction against the Orange School Board on the ground that it sought to interfere with the statutory right of referendum and to prevent voters from changing the type of school board and sought to do so on the basis of a legal argument that had no merit. The motion was denied,
City of Orange Township, BOE v. City of Orange Township, ESX-L-6652 (2017), aff’d by App. Div. on motion for emergent appeal.
NJ Appleseed Trial Court Brief and Appellate Division Brief.
Sanctions Brief and Reply Brief.
Rule 1:4-8 Frivolous Litigation Notice.
Township of Piscataway
We represented two groups of petitioners in Piscataway who were seeking to place binding questions on the November 2021 ballot. One would make certain improvements to EMS services while the other would require the town to record, broadcast or stream Council, Planning Board and Zoning Bord meetings. When enough signatures were gathered to put both questions to the voters, the Township Council, in an apparent effort to thwart approval of the petitioners’ questions, passed resolutions to add to the same ballot its own nonbinding public questions on those issues which included exaggerated statements about the cost. We sued and a trial judge found the Council’s questions invalid and ordered them kept off the ballot, agreeing with us that they were “designed to scare the electorate against the binding initiative effort,” and “conceived, designed, and adopted as a pretext and a subterfuge to sabotage and ultimately defeat the plaintiffs’ petitions.” Piscataway appealed the decision and we cross appealed on the trial judge’s refusal to award us legal fees under the NJ Civil Rights Act (NJCRA) because he saw no violation of petitioners’ rights’ since the Council questions never got on the ballot. Voters overwhelmingly approved both of petitioners’ questions when they went to the polls in November and both ordinances went into effect. On August 24, 2022, in a precedential opinion, a split Appellate Division panel affirmed the decision to keep the Council’s competing questions off the ballot and reversed on the denial of legal fees. It held that Piscataway lacked statutory authority to place non-binding public questions concerning the identical issue on the same general election ballot as the petitions and that the inclusion of both could confuse voters and produce contradictory results. Further, fees under the NJCRA were justified because the Township attempted to violate the petitioners’ right to use the initiative process, compelling them to go to court for a remedy. On the fee issue, the majority relied heavily on Tumpson v. Farina, another NJ Appleseed case, discussed above.
We assisted a local group of residents, in 2016, in drafting two petitions related to the construction of a structured parking garage that the community did not want. The first petition, filed under the Faulkner Act, Referendum Petition to Repeal Ordinance No. 3519, concerned the transfer of the project to the county improvement authority and proposed lease-back. In response, the Village Council repealed the ordinance and then adopted a bond ordinance. The second petition, Referendum Petition to Repeal Bond Ordinance No. 3521, went to ballot and the bond Ordinance was repealed.
NJ Appleseed Letter to Village Clerk.
In late 2022, NJ Appleseed was approached by Westfield Advocates for Responsible Development (WARD), a community group opposed to a proposed redevelopment plan to build a massive residential-office-retail complex in the Union County town. Having asked the town to hold a nonbinding referendum on the plan and having been informed that the town was not authorized to do so, a member of WARD turned to NJ Appleseed for a legal opinion on the question.
We agreed to do so in order to clarify the meaning, intent and interplay of New Jersey’s initiative and referendum law and to vindicate the right of a community group seeking to be heard in connection with a local redevelopment project. Our opinion, sent to WARD on January 30, 2023, concluded that the town’s position that it was not authorized to hold a nonbinding referendum on the issue was incorrect. Although the Local Redevelopment and Housing Law prohibits voters from repealing a redevelopment ordinance, the New Jersey Supreme Court has held that such an explicit prohibition against initiative and referendum does not apply to non-binding votes on questions placed by a municipality on the ballot pursuant to N.J.S.A. 19:37-1, a holding that is directly applicable to redevelopment plans as well as zoning ordinances.