What Montclair’s Cancelled Referendum and New Jersey Case Law Suggest for Berkeley Heights and Other Districts

When Montclair’s school referendum was cancelled by judicial ruling today the immediate cause was simple- the ballot questions were not clear enough for voters. Judge Gardner stated, “I don’t find them clear,” and added, “This is a convoluted statement.” and “The issue is clarity. The normal average Montclair voter, when he gets the question has got to understand what they are voting for or voting against.”

Montclair’s questions were short and asked voters to approve a specific dollar amount together totaling roughly $20 million in additional tax levy while describing the tax impact in a single sentence. Yet that referendum was still challenged for not making the implications clear enough. Plaintiffs argued the ballot was deliberately misleading, but Judge Gardner appeared to focus squarely on clarity.

The Berkeley Heights Public School District takes a very different approach with questions that run several hundred words each, bundle many projects across multiple buildings and include detailed bond cost and state aid language that may be difficult for an average voter to interpret – concerns that mirror the clarity problems raised in Montclair.

New Jersey law requires that a public question be written in a way that allows an ordinary voter to understand what they are voting for or against. This principle comes from long standing case law, including Gormley v. Lan (1981) where the New Jersey Supreme Court explained that a public question often does not tell the ordinary voter what is involved and that an interpretive statement exists to “set forth the true purpose” of the measure so voters understand the choice they are being asked to make. The Court stressed that the information provided must be fair so that voters can make an informed decision.

In the same opinion the Court cited Young v. Byrne (1976) for the basic rule that the primary concern in reviewing a public question is whether the ballot language is confusing or deceptive.

Montclair’s issue was not (it seems) that the text hid taxes, more that the text did not make the consequences clear enough for an ordinary voter to understand the effect of a yes or no vote.

The Berkeley Heights ballot raises similar and in some ways stronger clarity concerns.

The questions on the BHPSNJ ballot…

-use broad open ended categories such as “various improvements alterations renovations and upgrades”

-combine unrelated projects into single approvals

-rely on technical language re: eligible costs, efficiency standards and state aid formulas

-include authority to transfer funds among projects

-contain a contingency rule that prevents Question 2 from passing unless Question 1 also passes

An average voter isn’t likely to understand the full scope or effect of these proposals from the ballot language alone.

While the District might point to the explanatory statement, it does little in making the ballot questions clearer or more understandable.

In Montclair much simpler questions were cancelled because they didn’t meet the clarity standard – the ballot structure in Berkeley Heights is longer, more technical and more bundled than the questions the court rejected.

Whether a challenge is filed or not the same clarity questions apply – making the Berkeley Heights Ballot a potential legal vulnerability under the same standards.