Judges side with Piscataway progressives in ballot question case

By: - August 24, 2022 7:05 am

Two judges said the Piscataway Township Council improperly added two questions to the November 2021 ballot. (Getty Images)

An appellate panel ordered a trial court to award attorney’s fees to residents whose ballot initiatives the Piscataway Township Council tried to undercut.

The three-judge panel on Tuesday affirmed a lower court ruling that found the Township Council acted improperly when it placed two nonbinding and nearly identical ballot questions alongside binding referendums placed on the ballot by resident petitions. The petitioners charged the council’s action was an attempt to undermine the binding referendums.

“This decision is a victory for democracy here in Piscataway and across the state, as it preserves the right of voters to enact laws when elected officials won’t,” said Staci Berger, one of the plaintiffs.

A Superior Court judge had ruled the council acted improperly but declined to award attorney’s fees to the plaintiffs, finding the council did not infringe on their rights because their petitions were still placed on the ballot. Tuesday’s Appellate Division decision reverses that decision, over the objection of a single judge whose dissent says the ruling undercuts the power of municipalities to gauge voter sentiment using ballot questions.

Last year, Piscataway residents gathered more than 830 signatures for two ballot initiatives. The first asked voters to create a unified EMS system — Piscataway had no such system despite a nearly decade-old report finding residents had substandard emergency medical services — and the other sought to require the township to livestream its public meetings.

After those initiatives were placed on the ballot, the council approved two resolutions that created two nonbinding ballot questions that polled the same issues but appended costs to both, nearly $643,700 for the EMS system and roughly $575,100 for the livestreaming setup. One progressive activist behind the initial two questions said the council’s move was a “shameful scheme” intended to deceive voters.

State statute allows local governing bodies to place nonbonding questions before voters only if no other statute allows the body to ascertain voter sentiment on an issue. Since voters were already being asked their opinion on the two issues at hand via the initial questions submitted by petitioners, the council was barred from adding its own questions on the same issues to the ballot, the judges wrote.

The judges also said the questions were skewed against the petitioners.

To permit questions phrased in the manner as the township did here, the assenting judges wrote, would “permit a governing body to defeat an initiative petition by only highlighting its negative effects, whether or not accurate, to the voters.”

They additionally said the presence of duplicate nonbinding resolutions would be confusing to voters.

It’s not clear whether the township will seek to appeal the matter to the New Jersey Supreme Court — Richard Mirra, its attorney, did not immediately return a call seeking comment — but the dissenting opinion could signal a path forward.

Judge Morris Smith cautioned the other judges’ reading of the law would entirely bar municipalities from placing nonbinding questions on a ballot because other statutes would always provide another method of measuring voter support for a given policy.

He further argued the competing questions would not have confused voters.

“In this scenario, voters are simply asked to resolve competing policy arguments, something they are entrusted to do every election,” Smith wrote.

Voters overwhelmingly approved both ballot questions in November, backing the EMS system by 32 points and the livestreaming requirement by 45 points.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.