Understanding How Local Government Works (Petitions, Referendum, and Intiatives)
You Don’t Like What Your Governing Body Did And Don’t Want To Wait To Vote Them Out, You May Have Options.
*Note: This is our interpretation of the law and is simplified for the sake of being digestible. Nothing posted should be considered legal advice.
Being in the Clerk’s Office often means hearing the concerns, complaints, or frustrations of the public and having to be hesitant regarding some of the legal avenues they have, as it could come back on us. But, in some cases, speaking specifically about New Jersey, people do have the ability to use direct democracy over representative democracy – but the system sometimes isn’t set up for that to be easy, or a realistic option.
Form of Local Government
What triggered this post is someone being upset that something passed and they wanted a means to repeal it. The problem is, it was a resolution, and unlike ordinances, resolutions (the overwhelming majority of the time) aren’t subject to referendum. They are subject to public comment, and you can surely pressure government officials to vote one way or another, but if it passes, it passes.
But, ordinances are subject to referendum – but only in certain forms of government.
Yes, for those who don’t know, representative democracy isn’t the beginning and end when it comes to government in the United States, or specifically in New Jersey, there are sub-categories you have to be aware of.
For example, suppose the form of government in the municipality is under the Walsh Act, Township, Borough, Village, or City (but non-Faulkner). In that case, your ability to do a referendum is severely limited. You can pursue them for certain things, like if the municipality tries to change its form of government, regarding alcohol sales, and specific types of bond ordinances, but generally speaking, your ability to undo what has been voted on is nil.
Faulkner Form Of Government (aka Optional Municipal Charter Law)
While the majority of forms of local government make it so that the only rebuke you can have on elected officials is voting them out of office, the Faulkner Form enables far more direct democracy.
Now, let it be clear, it isn’t perfect, and there are trade-offs. For example, in the other forms mentioned in the last header, certain bond ordinances are subject to referendum. However, in Faulkner Form, bond ordinances and most financial measures—like setting salaries, adopting the annual budget, emergency appropriations, and other spending laws—aren’t subject to referendum.
However, a lot of things which could be considered quality of life are subject not only to referendum (appeal) but also to initiatives (direct democracy). An example, say you want to remove parking restrictions that have been on the books for decades, you can create an initiative to remove the parking restrictions in a Faulkner Form of Government.
Doing a Referendum or Initiative
But, here comes the challenge: The governing body still has power in this situation. They can either act on it once the Municipal Clerk presents a petition that has been properly filed or submit it to the municipality to vote on.
Now, why would they opt for sending it to the ballot? Well, because petitions require 10%-15% of those who voted in the last general election (not even 10%-15% of the entire population of a municipality). So, the governing body just going along with something because there was a petition wouldn’t make sense, for it would be the minority making decisions for the majority.
As for getting the number, you would contact the Municipal Clerk, who will contact the County to see what the number is. You may wonder why not just contact the County? The reason is that the Clerk is the one who would have to accept and process the petition, and generally speaking, the County will bounce back any municipal election issues of this kind to the Clerk.
Which brings in the issue of: When can you Do A Referendum or Initiative?
Elections are expensive. Sample ballots cost tens of thousands of dollars to the municipality, and then there are the costs of poll workers and more. So, whenever possible, if there is an initiative or referendum, the goal is to have the issue addressed at a general election or municipal election.
However, time is a major factor. For example, the governing body has 20 days to decide either to adopt an initiative or apply a referendum (repeal). If they send it to the voters, then the ballot question needs to be added to the next scheduled election, but if there isn’t one within 40-90 days, a special election has to happen. This is organized between the Clerk and County officials who handle all legal requirements from public notice to making sure the election is held in accordance with state law.
What About For School Boards/Districts?
EXCELLENT QUESTION! School boards don’t allow initiatives or referendums (generally). However, many are required to hold elections, sometimes special elections, for certain capital projects, securing bonds, and regarding their budget, also, if they seek to regionalize or consolidate with other school districts.
But, overall, direct democracy is as limited as the majority of non-Faulkner type municipalities.