In New Jersey, legislatively referred amendments are the only available form of statewide direct democracy. Under the state constitution, a proposed amendment must be submitted to voters at the next general election after a public hearing and legislative approval, whether in one legislative session (via a supermajority vote) or two sessions (via two simple majority votes). The legislature may set forth the contents of the ballot, but the Attorney General has discretion to add a ballot statement if the legislature has not clearly set forth the true purpose of the proposed amendment and a brief statement interpreting the same. Each county clerk must mail the full text of each proposed amendment to registered voters before the election, as well as other materials designated by the Attorney General as necessary to inform voters of the proposition’s effect. Judicial review is likely to be available, and in addition to applying the standards found explicitly in state constitutional and statutory provisions, New Jersey courts have also asked whether the ballot’s contents are fair.
BACKGROUND INFORMATION
What forms of direct democracy are available, and when?
Statewide Ballot Measures in New Jersey
New Jersey does not have initiatives or veto referendums but has legislatively referred amendments.
X Initiatives – Statutory
X Initiatives – Constitutional
X Veto Referendums
√ Legislatively Referred Amendments
An amendment to the state constitution proposed by the legislature must be approved by New Jersey voters. N.J. Const. art. IX, § 4.
Election Timing
Under the New Jersey Constitution, a proposed amendment must be submitted to voters at the next general election, but the precise timing depends on the level of support for the proposal in the legislature. If, following a public hearing, a proposed amendment is approved by 3/5 of all members of each house, it is submitted to voters at the next general election. See N.J. Const. art. IX, § 1. In contrast, if it is approved by a majority of all members, but less than a 3/5 supermajority, it is first referred to the next consecutive legislature; if a majority of all members of this consecutive legislature approve, the proposed amendment is then submitted to voters at the next general election. Id.
Regardless of the level of legislative support, the proposed amendment must be submitted at the next general election to occur at least 70 days following the final action of the legislature. Id. sub. (4), art. II, § 1, ¶ 2.
BALLOT PREPARATION
What is included on the ballot, and who prepares it?
The ballot for a proposed constitutional amendment in New Jersey must display the following.
- A ballot question, which clearly sets forth the true purpose of the matter to be voted on, in simple language easily understood by the voter.
- A brief statement interpreting the amendment, also in simple language.
N.J. Rev. Stat. § 19:3-6.[1] The legislature may include these in the underlying statute proposing a constitutional amendment. However, if the underlying statute does not contain a public question clearly setting forth the true purpose of the proposal and a brief statement interpreting the same, the Attorney General may prepare a brief statement interpreting the proposed amendment and setting forth the true purpose of the matter being voted upon. See Gormley v. Lan, 438 A.2d 519 (N.J. 1981). The Attorney General’s statement is included on the ballot alongside the statement set forth by the legislature. See id.
INFORMATION TO VOTERS
What information is provided to voters before the election, and how?
Publication
The legislature must cause the text of the proposed amendment to be published at least once in one or more newspapers in each county where newspapers are published, not less than three months before the amendment is submitted to the people. N.J. Const. art. IX, § 3.
In addition, the text of the ballot question must be published at least once in one or more newspapers in each county where newspapers are published, at least 60 days before the election, “and the results of the vote upon a question shall be void unless the text thereof shall have been so published.” N.J. Const. art. II, § 1, ¶ 2.
Voter Information Pamphlet
New Jersey requires each county clerk to mail the full text of a proposed constitutional amendment to all registered voters (or in counties with less capacity, to all registered voters who have responded to a confirmation notice), along with a sample ballot. See N.J. Rev. Stat. §§ 19:14-21, -27, -21.1.
The text is to include any portion of the constitution necessary to clearly disclose to voters the relation of the proposal to the existing constitution, and it must clearly indicate which portion of the language would be new and/or omitted. Id. §§ 19:14-28, -29. The Attorney General must designate in writing to the Secretary of State which portions of the constitution must be included, which the Secretary of State must provide to county clerks at least 20 days before the election. Id. §§ 19:14-30, -32. However, in addition to or in place of including the relevant constitutional provisions, the Attorney General may decide to prepare and include a summary statement of the existing constitutional provisions on the subject as necessary to inform voters of the effect of the adoption or rejection of the proposition. See id.; § 19:14-31.
JUDICIAL REVIEW
When and how can the court step in?
While New Jersey provisions governing legislatively referred amendments do not explicitly provide for judicial review of ballot language or related materials, review is likely to be available under other channels, such as actions for declaratory and/or injunctive relief. In addition to applying the statutory standards, New Jersey courts have asked whether the ballot’s contents are “fair.” See, e.g., Gormley v. Lan, 438 A.2d 519, 525 (N.J. 1981).
Sample case: Gormley v. Lan, 438 A.2d 519 (N.J. 1981) (finding the interpretive statement prepared by the Attorney General was unfair and “clearly unbalanced,” and providing a replacement to avoid additional litigation).
[1] New Jersey statutes can be found on the website of the New Jersey Legislature. See New Jersey Legislature, https://www.njleg.state.nj.us/ (last visited Oct. 29, 2023).