NJ Appeals Court Addresses Validity of Referendum Petition Using E-Signatures

In Township of Montclair Committee of Petitioners v. Township of Montclair, the Appellate Division addressed the validity of a referendum petition that relied on voters’ electronic signatures. The appeals court held that the Clerk of the Township of Montclair (Clerk) acted arbitrarily and capriciously when she determined that a petition lacked sufficient signatures after observing differences between some of the petition’s e-signatures and the corresponding voters’ pen-and-ink signatures on the voter rolls.

Facts of the Case

On April 7, 2020, the Township of Montclair enacted an ordinance adopting rent regulation provisions. Wanting to challenge the ordinance in the following election, plaintiffs sought signatures for a petition in favor of a referendum to repeal the ordinance. Adhering to the Governor’s Executive Order 132, which banned door-to-door signature gathering, plaintiffs created a website. It provided visitors with the opportunity to read the ordinance and the petition before navigating to the signature page, which required that the voter: fill information fields consistent with the requirements of N.J.S.A. 40:69A-186; electronically sign; and affirm their desire to have their signature counted.

New Jersey law, N.J.S.A. 40:69A-184, requires the signatures of fifteen percent of the registered voter population to effectuate a petition for referendum. Based on Montclair’s total registered voter population, plaintiffs needed 1,020 registered-voter signatures. Plaintiffs collected 1,528 electronic signatures and electronically filed their petition with the township clerk on September 24, 2020.

Three weeks later, the Clerk of the Township of Montclair served plaintiffs with a “notice of insufficiency,” revealing that she had rejected 168 signatures because she determined that the voter’s e-signature did not match the signatures on record with the State of New Jersey Registration Voter System. Based on the Clerk’s personal assessment, the petition was short 106 valid signatures.

After the plaintiffs filed suit, the trial judge allowed additional time for them to cure the alleged defects cited by the Clerk. The plaintiffs’ amended petition included an additional 136 e-signatures, some of which were intended to cure earlier rejected signatures. However, the Clerk rejected many of the signatures, again finding their e-signatures did not match the pen-and-ink signatures in the voter system.

Although the trial court initially sided with the Clerk, on reconsideration, it determined that the Clerk’s rejection of 168 e-signatures in the initial petition and the additional twenty-seven e-signatures in the amended petition was arbitrary and capricious.

Appellate Division’s Decision

The Appellate Division affirmed. “We affirm the trial judge’s determination that the clerk acted arbitrarily and capriciously,” the court wrote. “Among other things, we conclude it was unreasonable, because of the limiting circumstance of the COVID-19 pandemic, and the Governor’s emergency order precluding door-to-door solicitations, for the clerk not to reach out and provide voters with an opportunity to cure the alleged uncertain signatures before attempting to disenfranchise them from the referendum process.”

In reaching its decision, the appeals court noted that the case was “governed by N.J.S.A. 40:69A-187, which requires that the clerk ‘determine . . . whether the petition is signed by a sufficient number of qualified voters.’” Citing D’Ascencio v. Benjamin, 142 N.J. Super. 52, 55 (App. Div. 1976), it further explained that “‘[t]here is no statutory directive as to the method or means to be utilized by the clerk in order to arrive’” at such a determination, but [the court] recognized a clerk has ‘the discretionary power to adopt any rational means of performing [this] duty, subject to judicial review to determine whether [the clerk] . . . abused [this] discretion and acted in an arbitrary manner.’”

The Appellate Division went on to conclude that the Clerk’s belief that her discretion allowed her to disregard e-signatures that did not, in her view, compare favorably to pen-and-ink signatures in the voter system was inconsistent with Stone v. Wyckoff, 102 N.J. Super. 26, 34 (App. Div. 1968). In that case, the Appellate held that N.J.S.A. 40:69A-169 “merely requires that the signers be ‘qualified voters,’ . . . not that their signature be in the form identical with that appearing on the registration records.” The court further summarized its decision in Stone as follows:

We admonished municipal clerks to consider and act with the understanding that “[m]any people have more than one ‘signature’” and many have signatures “which to others are illegible.” While we recognized that a clerk may at times “have some difficulty in identifying some voters where the form of signature on the petition varies from that in the registration book,” thereby allowing the clerk some “administrative” discretion to “require some proof of identity or reject the name,” we emphasized that absent a “significant variance” between the signature in question and the signature in the voter registry, “the presumption of genuineness of the signatures as those of qualified voters” will not be overcome.

While the Appellate Division acknowledged that a lot has changed since its 1968 decision in Stone, it emphasized that the same principles apply. “Even though written in a less complicated pen-and-ink world, Judge Conford’s Stone opinion presents principles still utile in a society well advanced into an electronic age,” the court wrote.

The Appellate Division also noted that the Clerk had an obligation to use her discretion reasonably. “The clerk has certified that many hours were expended in analyzing signatures, but common sense and a rational view of the clerk’s statutory role more than persuades that the time spent comparing doubtful signatures would have been more effectively utilized by reaching out to those voters for confirmation before taking the grave step of disenfranchising them from the process,” the court wrote. “The question, after all, was not whether, when analyzed in a vacuum, an e-signature matched a pen-and-ink signature but whether the voter ‘intended’ that the e-signature be an expression of intent to endorse the petition.”

The appeals court ultimately determined that in light of the challenges posed by the pandemic, the Clerk’s failure to reach out to those voters whose e-signatures were, in her view, doubtful or at variance with the voter registry was arbitrary and capricious.

In so holding, the Appellate Division emphasized that though the clerk certified that she “and [her] assistants spent over 20 hours reviewing the petition forms, searching the voter databases, and rechecking any petition that were rejected at least 3 times”, the Clerk did not spend any time engaging in the “cure” process described in that “Guide to Signature Verification of Mail-In and Provisional Ballots and Cure of Discrepant or Missing Signatures”, even though the clerk certified that she consulted the Guide in conducting her analysis.

The Appellate Division remanded the case back to the trial court, stating that it “deem[ed] it advisable now that there is greater physical accessibility to courts and to the affected voters, that the trial judge schedule an evidentiary hearing and engage in such fact-finding as may be necessary to ensure certainty about the number of voters who, by e-signing, intended to support the petition.” Citing Stone, the court cautioned that “a signature consistent with that of the registered voter, of one residing at the recorded address of the registrant, must be deemed prima facie that of the registered voter, and the burden is on any challenger to show the contrary.”

For more information about the case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group at 201-896-4100.

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