Electronic Signatures: Coming Soon to a Petition Near You?

Forty-seven states have enacted forms of the Uniform Electronic Transactions Act (UETA). Section 7 of the uniform act provides that “If a law requires a signature, an electronic signature satisfies the law.” The law was primarily targeted at erasing barriers to e-commerce. However, the law may reach into unexpected realms, as demonstrated by a decision of the Utah Supreme Court handed down this summer.

The case is Anderson v. Bell, 2010 UT 47, 234 P.3d 1147. The case originated when Farley Anderson sought to stand as a non-party affiliated candidate for governor of Utah. In order to be on the ballot for governor in Utah, a candidate is required to submit a petition signed by at least 1,000 registered voters residing in the state.  Anderson submitted a mixture of handwritten signatures and electronic signatures collected on a web site in favor of his candidacy. The Utah Attorney General struck the electronic signatures and rejected the petition because the number of signers was no longer sufficient. Anderson petitioned for an extraordinary writ from the Utah Supreme Court.

In addition to looking at Section 7 of the Utah UETA, the court considered Utah’s general definitions statute, which explicitly includes electronic signatures within the definition of a “signature” to be used in the entire Utah code. In light of this as well as UETA’s unambiguous language that any law requiring a signature is satisfied by an electronic signature, the court held that a signature for the purposes of a petition to run for office includes an electronic signature. The court pointed out that the crucial question for a signature is intent to authenticate, which is demonstrated just as well by an electronic as a paper signature.

The Utah court rejected an argument of the Lt. Governor based on a Utah law granting agencies the authority to make rules about when  that agency will and will not be accept electronic submissions on the ground that the Lt. Governor had not actually promulgated any such rules. The Lt. Governor also pointed to UETA Section 5(b), which states that the act applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. The court rejected this argument on the basis that the parties to the transaction are the persons signing the petition, not the Lt. Governor, whose only interest is the duty to verify the signatures.

Although the Anderson case turned on certain details of statutory interpretation, including those based on Utah administrative law that apply differently in different jurisdictions, the case raises broader policy questions. That electronic signatures should be allowed to create contractual relations in order to facilitate online commerce is reasonably well accepted.  The question Anderson hints at is whether this acceptance merely represents acquiescence to practical realities, or a more fundamental belief that a mouse click is just as appropriate a way for a person to indicate agreement as a physical signature.

Less philosophically, Anderson and cases like it may force states to re-examine their petition system. This raises interesting policy questions, not so much in the Anderson setting of candidacy but in the context of voter initiatives. (The Anderson court refused to reach the question of whether electronic signatures are valid for voter initiative purposes.) Wide acceptance of electronic petitioning could greatly modify the landscape for voter initiatives. Presently, placing a voter initiative on the ballot in states that allow such initiatives demands either a very large amount of grass roots support in the form of volunteer petition gatherers, or, perhaps more likely, large amounts of funds for paid petition gatherers. The possibility of online petitions in this setting could greatly shift the balance of power, decreasing the emphasis on petition circulators and placing more emphasis on the ability of groups promoting a voter initiative to draw attention to a web site.

The question of whether to allow online signatures for voter initiatives online as a policy matter turns somewhat on the question of why signatures are required at all. The most straightforward answer is to determine whether there are enough citizens willing to endorse the initiative to suggest that it has some reasonable chance of passing. If this is the sole reason for collecting signatures, then it is difficult to come up with a compelling reason not to accept online petition signatures. As the Anderson court noted, a digital signature demonstrates intent to endorse just as a physical signature does. Although such an adjustment may cause short-term administrative difficulties as secretaries of state adjust to new procedures, it seems most likely that online signatures, coming in a machine-readable form, would be much easier to evaluate in the long run.

If, however, the signature gathering component of the voter initiative process is intended as a barrier to entry, ensuring that initiative proponents are serious enough to take on the logistical tasks and expense of collecting signatures, petition signatures may not fulfill this task. The proliferation of online “petitions” certainly does suggest that electronic signature collection might invite arguably frivolous voter initiatives. On the other hand, the current system favors initiative proponents with substantial funds to hire petition circulators. Allowing online petitions would not eliminate such parties, but might balance the playing field in favor of parties with less economic power.

Regardless of how these questions are ultimately resolved, the Anderson case signals that the electronic signature may refuse to be contained within the narrow bounds of e-commerce.

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