Utah Case Allows Electronic Signatures on Petitions -- For Now

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In a move that some are hailing as a new frontier for independent political candidates, the Utah Supreme Court ruled today that nominating petitions can be signed electronically as well as on paper and still be valid.

"[W]e conclude that the plain language of section 20A-9-502 is not limited to handwritten signatures," wrote the court in its decision.

"The Court’s opinion, the first of its kind nationwide, has the potential to increase significantly the ability of independent candidates to access the general election ballot, and thus to increase the opportunity for minority viewpoints to be heard and considered in election years," trumpeted the Utah chapter of the American Civil Liberties Union, which argued the case.

Well, yes and no.

Background first, from the Associated Press: "In March, Utah Lt. Gov. Greg Bell rejected a nominating petition from Farley Anderson, an independent gubernatorial candidate, saying state law did not allow for e-signatures. Anderson had included more than 150 e-signatures on his petition. In its unanimous ruling, the court said Bell's decision "exceeded the bounds of discretion" afforded his office and he would need specific rules in place to exempt the election process from laws that allow electronic signatures in other settings."

So what does this mean?

First of all, the court ruled narrowly, rejecting a memorandum from The Utahns for Ethical Government that suggested the court should also determine that an electronic signature satisfies the signature requirement of a voter initiative, such as the one it's doing for improving ethics in Utah government. "We decline to address this issue in this petition," wrote the court; it addressed the candidate portion under "extraordinary," time-critical conditions because today is primary election day in Utah. UEG still has until August to collect its signatures.

So, for now, this ruling helps only candidates; if people want support for electronic signatures on initiatives, they'll have to go through the normal court process.

Second, because this decision rests on Utah's Uniform Electronic Transactions Act, the court left a door wide open for the Utah legislature -- as well as for legislatures in the other 47 states that support the UETA (all but Illinois, New York and Washington) wishing to forestall a similar court action -- to pass laws forbidding electronic signatures for such purposes.

While Bell argued that the UETA allows government agencies to set up rules banning electronic signatures, the Court noted that such rules had to be set up using normal rulemaking procedure, not on the fly. "[T]his subsection also requires the state agency to make this determination through the rulemaking procedures required by Title 63G," the court wrote. "The Lt. Governor’s argument here asks us to interpret this statute to find that when a government agency has not promulgated rules that control electronic signatures and transactions, then the agency will not conduct business through electronic means. That is not what this statute says."

So, the Utah state government could conceivably set up rules forbidding electronic signatures for petitions. But because Utah's Uniform Electronic Transactions Act "expressly permits an electronic signature to satisfy any law that requires a signature," it is likely that legislation would be required.

The court noted, however, that the legislature had already had the opportunity to set up such exceptions and had failed to do so, when it set up other exceptions. "The legislature excluded only “wills, codicils, . . . testamentary trusts” and transactions within the scope of the Uniform Commercial Code from the provisions of the UETA. Id. § 46-4-103(2)," the court wrote. "This list demonstrates that there were specific documents that the legislature did not believe were appropriately authenticated through electronic means. By contrast, the UETA is silent on the topic of elections, campaigning, ballot access, or the Election Code generally."

IANAL (I am not a lawyer), but I'll update this if I hear differently from actual lawyers.