NI v. SLOCUM No. A128721.
196 Cal.App.4th 1636 (2011)
MICHAEL NI, Plaintiff and Appellant, v. WARREN SLOCUM, as Chief Elections Officer, etc., Defendant and Respondent.
Court of Appeals of California, First District, Division One.
June 30, 2011.
DLA Piper, Steven G. Churchwell, Stanley J. Panikowski and David Dell for Plaintiff and Appellant.
BuckleySandler and Donna L. Wilson for Electronic Signature and Records Association as Amicus Curiae on behalf of Plaintiff and Appellant.
Evans & Page and
Corey A. Evans for Citizens in Charge, The Humane Society of the United States and National Taxpayers Union as Amici Curiae on behalf of Plaintiff and Appellant.
Antonio Gonzalez for Southwest Voter Registration Education Project as Amicus Curiae on behalf of Plaintiff and Appellant.
Joe Trippi as Amicus Curiae on behalf of Plaintiff and Appellant.
Gautam Dutta for Asian American Action Fund as Amicus Curiae on behalf of Plaintiff and Appellant.
Michael P. Murphy, County Counsel, Brenda B. Carlson, Chief Deputy County Counsel, and David A. Silberman, Deputy County Counsel, for Defendant and Respondent.
Kamala D. Harris, Attorney General, Douglas J. Woods, Acting Assistant Attorney General, Constance L. LeLouis, Assistant Attorney General, and Hiren Patel, Deputy Attorney General, for Secretary of State Debra Bowen as Amicus Curiae on behalf of Defendant and Respondent.
To qualify an initiative measure for the election ballot, its proponents must submit to county elections officials a petition endorsed by
Petitioner is a registered voter residing in San Mateo County. In February 2010, he filed a verified petition for a writ of mandate and complaint for declaratory relief, seeking an order compelling the County to accept his electronic signature on an initiative petition and declaring electronic signatures to be a valid means of endorsing such petitions. The petition and complaint alleged that the proponents of initiative No. 1377, an initiative to legalize marijuana use in California (hereafter the marijuana initiative), had agreed to work with Verafirma, Inc. (Verafirma), a developer of electronic signature software, to test the use of such signatures in the endorsement of initiative petitions. During the signature drive to place the marijuana initiative on the ballot, petitioner reviewed a copy of the initiative petition on the Internet and endorsed the online petition by using Verafirma's software to "sign it on an iPhone screen." A copy of the petition bearing petitioner's signature was submitted to County election officials in electronic form, but the County refused to accept the electronic signature.
In opposition, the County submitted a declaration from an elections official stating that on February 9, 2010, the San Mateo County Elections Office (County Elections Office) received a memorandum from the California Secretary of State warning elections officials that one or more counties were likely to receive "electronic devices" containing initiative petitions with electronic signatures. The memorandum stated that, after reviewing the issue, the Secretary had concluded electronic signatures do not satisfy the statutory requirement that a voter "personally affix" his or her signature, printed name, and address to an initiative petition.
Shortly thereafter, the County Elections Office received from the marijuana initiative proponents, along with ordinary signed paper copies of the petition, a portable digital memory device, known as a "thumb drive." The thumb drive held an image of the marijuana initiative petition. In the space provided for voter endorsement on the petition were the signature "Michael Ni" and petitioner's handwritten name and street address. Petitioner's city of residence and zip code were also included, written in typeface rather than by hand. Petitioner had also executed the required circulator's declaration, stating that he witnessed his signature and that it was genuine. After careful examination, it appeared to the County that the same signature and printed name and address had been used for endorsing the petition and executing the circulator's declaration.
In a certification sent to the Secretary of State, the County Elections Office deemed petitioner's signature invalid because it was submitted electronically. The County apparently did not attempt to determine whether petitioner's signature otherwise satisfied statutory requirements. If it had done so, the official explained, elections officials would have visually compared the signature and address on the petition with the signature and address on
The trial court denied the petition in a detailed written decision. The court concluded the thumb drive submitted to the County did not comply with statutory requirements for submission of an initiative petition, which the court construed to require the submission of a paper petition. In addition, the court concluded the use of an electronic signature was impermissible because it did not allow elections officials to determine whether the voter personally affixed his or her signature to the petition, as required by statute.
Petitioner contends the County was required to accept his electronic signature and address information as compliant with the statutory requirements for endorsement of an initiative petition under the Elections Code.
If the statutory language is unambiguous, our inquiry ends. (Pineda v. Bank of America, N.A., supra, 50 Cal.4th at p. 1394.) On the other hand, "[i]f the language is susceptible of multiple interpretations, `the court looks "to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." [Citation.] After considering these extrinsic aids, we "must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute . . . ."'" (Lopez v. Superior Court (2010)
A. The Statutory Background
The requirement that a signer "personally affix" information upon endorsing an initiative petition is long-standing. It was first added to an ancestor of Elections Code section 100, former Political Code section 1083a, in 1933, when the statute was amended to require that a signer "himself affix" his address to the petition. (Stats. 1933, ch. 936, § 2, p. 2471; see Thompson v. Kerr (1940) 16 Cal.2d 130, 131 [104 P.2d 1021] [quoting successor statute].)
B. Existing Statutory Authorization for Electronic Signatures
As an initial matter, petitioner and an amicus curiae, the Electronic Signature and Records Association, argue the use of electronic signatures is authorized by two statutes other than Elections Code section 100, Government Code section 16.5 and the Uniform Electronic Transactions Act (UETA) (Civ. Code, § 1633.1 et seq.). Government Code section 16.5 states: "In any written communication with a public entity . . . in which a signature is required or used, any party to the communication may affix a signature by use of a digital signature . . . ." More succinctly, the UETA provides: "If a
For essentially the same reason, the analysis of the Utah Supreme Court in Anderson is inapplicable to California's initiative petition practice. The statute considered in Anderson required certain candidates for statewide office to submit a petition or certification "signed" or "completed" by at least 1,000 registered voters. (Anderson, supra, 234 P.3d at pp. 1148, 1150.) The statute used the two terms interchangeably without defining them and did not impose any further constraints on signing. (Id. at p. 1150.) The court found that two different Utah statutes authorized the use of electronic signatures under these circumstances—a general statute defining the word "`signature'" to include "`information stored in an electronic or other medium'" and a provision of the Utah UETA that is identical to our Civil Code section 1633.7, subdivision (d), mandating the acceptance of an electronic signature whenever a signature is required. (Anderson, at pp. 1152, 1153, 1155-1156.)
The Utah petition statute differs from Elections Code section 100 in two critical ways. Because the Utah statute requires only a signature, it does not contain section 100's additional requirement that the signature be personally affixed to the petition. Nor does it require that the voter personally affix his or her printed name and address. These differences preclude our adoption of Anderson as dispositive here.
C. The Plain Meaning of the Statutory Language
We therefore turn to the interpretation of Elections Code section 100. The critical interpretive issue is the one highlighted by the Secretary of State's
The County argues, in effect, for the first definition, construing the statute to require the endorser to write his or her signature and other information directly on a paper copy of the petition. In this way, the voter physically "attaches" the signature to the petition by inscribing it with a writing utensil. Use of a writing utensil is also the intuitive meaning of the phrase "affix . . . a signature."
While not as self-evident, petitioner's interpretation appears to fall within the more expansive second definition, "to attach or add in any way." In petitioner's interpretation of Elections Code section 100, the smartphone acts like an electronic pen and paper, allowing the voter to inscribe an electronic image of his or her signature and other information onto the electronic image of an initiative petition. These can be stored in a memory and, if need be, printed. In the process, the signature and other information are "affixed" to the printed petition. Although the signature is not inscribed directly by the hand of the voter onto the printed petition, the image on the printout is that of a handwritten signature, originally formed by the voter's own hand, and it can be evaluated by elections officials in the same manner as a directly inscribed signature.
We find no merit in the County's argument that this interpretation should be rejected because it requires a voter merely to "trace his name and his street address . . . on a blank iPhone screen," thereby failing to satisfy the policies underlying the "personally affix" requirement. Contrary to the
We find no reason to reject either of these definitions solely on the basis of the plain language of the statute. They plausibly fall within different, but equally accepted, definitions of the verb "affix," and both require the same degree of "personal" action on the part of the voter. Solely on these grounds, we have no basis for choosing between them.
D. Other Interpretive Materials
Because we find the plain language of the statute to be susceptible to both constructions, we turn to other interpretative materials to determine the intent of the Legislature. As noted above, "`the court looks "to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." [Citation.] After considering these extrinsic aids, we "must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute . . . ."'" (Lopez v. Superior Court, supra, 50 Cal.4th at p. 1063.) We conclude these extrinsic materials weigh heavily in favor of the County's proposed construction.
It is most persuasive to us that the Legislature did not anticipate the use of electronic signatures when it drafted the statute and has since taken no action that can be construed as approving them for this purpose. When the Legislature first required voters personally to affix information to an initiative petition in 1933, electronic signatures were not even a twinkle in the eyes of Messrs. Hewlett and Packard. Necessarily, the legislators who enacted the language intended that voters would write directly on a paper copy of the petition, since there was no other means for a voter personally to affix
Nor can it be assumed the Legislature would view the use of electronic signatures as a simple issue. In 1997, the Legislature passed Assembly Bill No. 44 (1997-1998 Reg. Sess.), which directed the Secretary of State to form a task force "to conduct a study on the creation of a digital electoral system." The system envisioned by the bill would, among other things, permit voters to use an electronic signature to "sign any petition." At a minimum, the passage of Assembly Bill No. 44 suggests the Legislature did not, at that time, view electronic signatures as encompassed within Elections Code section 100. It also suggests the Legislature approached the prospect with sufficient caution that it was unwilling to authorize the use of electronic signatures at that time; Assembly Bill No. 44 merely authorized a study of their use. This study appears never to have occurred, however, for the bill was vetoed by then Governor Wilson. In his veto message, the Governor asserted that the use of electronic signatures would "compromise voter confidentiality and generate significant opportunities for fraud. Since the digital system would be available only to those with access to computer terminals, it would not replace the current system. Accordingly, the use of two systems would complicate voter verification procedures, further compromising the electoral process." The caution of the Legislature and the concerns of the former Governor justify a similar caution on our part.
The Elections Code requires each petition submitted to county election officials to be accompanied by the declaration of the circulator, attesting to the genuineness of the signatures on the petition.
The contents of the declaration required from the circulator suggest the Legislature viewed the participation of the circulator as a protection against fraud in the collection of signatures. By requiring the circulator to certify that he or she witnessed each signing and believes the signatures to be genuine to the best of his or her information, the Legislature installed the circulator as a partial guarantor that the signatures were not the result of fraud. Although a circulator is not required to take active measures to prevent fraud, the circulator's declaration effectively certifies there was no obvious fraud and no nonobvious fraud of which the circulator was aware. Criminal prosecutions have been brought against circulators alleged to have certified falsely. (E.g., People v. Guevara (2004)
Use of an electronic signature system bypasses this function of the circulator. Use of the software is innovative precisely because it will permit
Even if such security exists, the Legislature, as the branch of government possessing the power under our Constitution to control "the manner in which petitions shall be circulated, presented, and certified" (Cal. Const., art. II, § 10, subd. (e)), is the proper body to determine whether and how to incorporate this technology, with its new risks and equal promise, into the process of initiative endorsement. Finding no indication the Legislature has yet considered that issue, let alone approved it, we would overstep the bounds of our proper role to walk into the breach.
The judgment of the trial court is affirmed.
Dondero, J., concurred.
I concur in the result, but do not agree with the conclusion in part II.C. of the majority opinion. Elections Code section 100 in context with the other sections that govern what can and cannot be done in election matters means what it says. Plaintiff Michael Ni of Verafirma, which sells electronic signature software, wants this court to find that Verafirma's electronic signature tracing process is allowed by the Elections Code, but the plain meaning is to the contrary. Since 1915 the Legislature has mandated a personal signature on a petition and has not hinted that elections officers may use electronic signature tracing and submission of a thumb drive for comparison for accuracy. The plain meaning of the reiterations of the statute since 1915 does not allow for an interpretation of a virtual signing of a petition with an equivalent electronic signature.
A voter personally affixing his or her signature on the initiative petition has always been the hallmark of compliance. Elections Code section 100 began as former Political Code section 1083a and specified the qualifications for signing initiative petitions: "Wherever, by the Constitution or laws of this State, any initiative, referendum, recall or nominating petition or paper, . . . is required to be signed by qualified electors, only an elector who is a registered qualified elector at the time he signs such petition or paper, shall be entitled to sign the same. . . ." By 1931 section 1083a required the signer to add his place of residence, the precinct, and also "affix" the date of such signing. In 1939 section 1083a was amended to become section 45 of the Elections Code and provided that only a registered qualified voter was entitled to sign the petition or paper. "Each signer shall at the time of signing the petition or paper himself affix thereto his place of residence, giving street and number. . . . affix thereto the date of his signing." In 1994 with the reorganization of the Elections Code section 45 became section 100 and again provided that when an initiative is required to be signed by voters, only a person who is an eligible registered voter is entitled to sign it with an affixed signature. "Each signer shall at the time of signing the petition or paper personally affix his or her signature, printed name, and place of residence, giving street and number . . . ." (Former § 100.) Present section 100 sets forth an exemplar petition form directing the personal affixing of the signer's identifying information on spaces designated for the printed name, signature line, and residence address. Tracing an electronic signature is not the same as personally affixing one's signature on an initiative petition on the form required by section 100.
A reading of Elections Code section 100.5 suggests handwritten signatures only are permitted. Section 100.5 discusses a voter unable to personally affix on a petition the information required by Elections Code section 100 and allows another person to print the voter's name, but the voter "shall personally affix his or her mark or signature on the appropriate space of the petition."
On the other hand, whenever the Legislature has considered the adaptation of modern technology to specific government affairs, it has circumscribed what is permitted, for example, in Government Code section 16.5 and Civil Code section 1633.1 et seq., and has done so after study, committee hearings, and input from concerned parties. Civil Code section 1633.3 carefully specifies the type of transactions that can use electronic records and electronic signatures, including facsimile signatures.
The use of modern technology in the initiative process has not been lost on the legislative process. In 2001 Walter Baer from the Public Policy Institute at the RAND Corporation prepared a policy evaluation of signing initiative petitions online for the Speaker's Commission on the California Initiative Process.
But significant policy considerations and implementation factors concerning usability and verifiable security still remain to be determined by the Legislature. Before the signature in a portable thumb drive can be validly recognized by an elections office, the Legislature would need to authorize such use by amending Elections Code section 100 and other related statutes. The plain meaning of Elections Code section 100 does not allow the court to legislate the use of Verafirma technology for the petition process. As it stands now, Elections Code section 100 in context means what it says and does not suggest that virtual electronic signatures are the legal equivalent of the required handwritten process of the Elections Code.
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