Tuesday, July 5, 2011
C.A. Rejects Bid to Count Online Signature on Initiative Petition
By KENNETH OFGANG, Staff Writer
The California Elections Code requires that voters wishing to sign initiative petitions do so on paper, not on a website, the First District Court of Appeal has ruled.
Div. One Thursday affirmed a San Mateo Superior Court judge’s denial of a mandate petition seeking to compel the county chief of elections to certify a single online signature on a petition seeking to place a marijuana initiative on the state ballot.
The petition was brought by Michael Ni, a founder of Verafirm, a developer of electronic signature gathering software. Ni last year gave a USB flash drive to county election officials that contained an image of his signature on a petition supporting an initiative to legalize and tax marijuana, which became Proposition 19.
The drive also contained a circulator’s affidavit, also signed by Ni.
Justice Sandra Margulies, in a footnote to her opinion for the Court of Appeal, acknowledged that the case was “doubly moot”—Proposition 19 qualified without Ni’s signature, and lost at the ballot box last November. But the issue is sufficiently likely to recur, she said, for the court to hear the merits.
Ni presented evidence explaining regarding Verafirm’s procedures, which allow a voter to view a copy of a petition on a screen; use the screen of a “mobile touchscreen device”—in Ni’s case an iPhone—to trace the required signature and printed name and address; and cause an image of those tracings to appear on an electronic copy of the petition.
This, he argued, satisfied the requirements of Elections Code Sec. 100 that a petition signer “personally affix his or her signature, printed name, and place of residence” to a petition.
Warren Slocum, the county elections head, disagreed and rejected the signature, and Judge George Miram denied the writ petition. This led to the appeal, which drew amicus briefs supporting the petitioner from the Electronic Signature and Records Association, Ctizens in Charge, The Humane Society of the United States, the National Taxpayers Union, the Southwest Voter Registration Education Project, Democratic political operative Joe Trippi, and the Asian American Action Fund.
Secretary of State Debra Bowen appeared as amicus supporting the county.
Margulies said the trial judge was correct because “use of an electronic signature to endorse an initiative petition is not contemplated by the Elections Code.”
The affixation requirement, the justice noted, is decades-old and requires that a signature be disallowed if a person other than the voter signs the petition, even with the voter’s approval. This is critical because it allows officials to determine whether the signature is actually that of a registered voter, Margulies explained.
The Uniform Electronic Transactions Act, the jurist acknowledged, permits an electronic signature to substitute for a pen-and-ink one under certain circumstances.. But Sec. 100, by its terms, applies “[n]otwithstanding any other provision of law,” so UETA is irrelevant, Margulies said.
Nor, she said, does UETA or any other statute state that an electronic signature will be deemed personally affixed to a document. And UETA specifically applies only to signatures, not to a voter’s name and address, which Sec. 100 also requires the voter to place on the document personally.
Utah Case Distinguished
The statutory language, she said, thus precludes reliance on Anderson v. Bell (Utah 2010) 234 P.3d 1147, in which the court applied UETA to allow counting of electronic signatures on candidate petitions. Utah’s elections law, she noted, requires a signature, but does not require that the voter personally affix either a signature or a printed name and address.
Personally, Margulies said, has long been held to mean “by the voter’s own hand.”
The justice went on to say that that the use of electronic signatures conflicts with the law governing the use of circulators.
While the technology “is innovative precisely because it will permit voters to gain access to petitions from the Internet and execute them without the assistance or intervention of a circulator,” she explained, “the practice eliminates from the signature collection system one of its primary protections against fraud, since the certification of an endorser that his or her own signature is genuine provides no more assurance of legitimacy than the signature itself.”
The case is Ni v. Slocum, 11 S.O.S. 3608.
Copyright 2011, Metropolitan News Company