Township of Montclair Committee of Petitioners v. Township of Montclair, ___ N.J. Super. ___ (App. Div. 2021). The Township of Montclair adopted a rent control ordinance. Plaintiffs sought to gather signatures for a referendum to block that ordinance. Due to the COVID-19 pandemic, plaintiffs could not go door-to-door to collect physical signatures. Instead, they established a website where persons could sign the referendum petition electronically.
N.J.S.A. 40:69A-184 requires 15% of the registered voting population to sign a petition in order to get a referendum on the ballot. Plaintiffs submitted what they believed were more than enough signatures, but the Township Clerk rejected a number of signatures on the grounds that those voters’ e-signatures did not match the signatures on record with the State of New Jersey Registration Voter System.
Plaintiffs filed suit, but the Law Division upheld the Clerk’s actions. On reconsideration, however, that court reversed itself and ruled that the Clerk had acted arbitrarily and capriciously. The Township appealed, and today the Appellate Division affirmed the decision against the Township. Judge Fisher wrote the panel’s opinion.
Judge Fisher stated 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.'” But quoting D’Ascencio v. Benjamin, 142 N.J. Super. 52, 55 (App. Div. 1976), he noted 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 we 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 Clerk’s view that she was permitted to compare the electronic signatures with pen-and-ink signatures and disqualify signatures without real explanation “was inconsistent with Stone v. Wyckoff, 102 N.J. Super. 26, 34 (App. Div. 1968), where we 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.'” Even back then, Stone recognized that “many people have more than one signature.” In today’s age of e-signatures, some done with a mouse or a finger, signatures often differ from time to time and circumstance to circumstance. Indeed, as Judge Fisher said in a footnote, the Clerk herself recognized that fact but claimed, in conclusory fashion only, that she had taken that into account.
Judge Fisher said 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 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…. Indeed, the clerk certified that she consulted New Jersey’s ‘Guide to Signature Verification of Mail-In and Provisional Ballots and Cure of Discrepant or Missing Signatures’ (issued on June 22, 2020) in conducting her comparison of signatures but apparently chose not to engage in the ‘cure’ process described in that Guide to directly ascertain whether the voter intended to support the petition.”
In remanding the case, the panel “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.” Again quoting Stone, Judge Fisher 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.”