Should electronic signatures be allowed to count to place initiatives on the statwide ballot?
By John Douglas Moore, co-chair NCRA Zero Waste Advocacy Committee
Feedback invited: jmoore@recyclelaw.com
California has a citizen form of government. Its citizens may pass laws (initiatives), strike down laws that have been passed (referenda), and remove from office those lawmakers passing offensive laws. (recall). California also has a recycling-friendly electorate- witness the defeat of the plastic bag business on the two referenda against bag bans in 2016. Closer to home, Alameda County Measure D with its 75% diversion mandate, landfill surcharge, and agency creation (Stopwaste) passed with over 60 % of the vote in 1990.
There is big catch to the idea of placing a statewide initiative on the ballot: To place a statewide initiative on the ballot one must collect 365,880 (5% of the total votes cast in the last gubernatorial election) signatures “personally affixed” by registered voters and witnessed by a “circulator” of the petition collecting the signatures.
Big business can place initiatives and referenda on the ballot because they can pay signature gatherers the market rate per signature, a cost in millions of dollars. Plastic bag makers, waste haulers and landfill owners, and beverage manufacturers and distributors all have the resources to put laws before the voters. In many situations it is all the opponents can do to fight against initiative and referenda, leaving those opponents so tapped of energy and resources that they cannot fight to pass laws they support. Last year’s Proposition 67 battle is a good example. Outspent by many millions of dollars, the recycling community including NCRA and CAW mounted an effective campaign to keep California’s plastic bag ban. But proposing a statewide law itself- say banning disposal of organic material at landfill, or constructing a new bottle bill that works- is too much to contemplate, mainly the required 365,880 signatures. (585,045 signatures to pass a Constitutional amendment).
But what if the signature gathering process was made easier? In the Twitter age is it too arcane to require “wet” signatures witnessed by a circulator. Can’t the internet be used to equalize the strength of opponents as it does it many ways already?
In 2011 a California Court of Appeals held in Ni v. Slocum that an e-signature drawn on a smartphone could not be counted towards the requisite number of votes in a county-wide (San Mateo County) initiative campaign to legalize marijuana. No California appellate court has taken up the issue since. One Utah court decision before Ni and one West Virginia court decision following Ni have held electronic signatures to be adequate for electoral purposes. Each Court examined the Uniform Electronic Transaction Act that was adopted by both states and California that gives e-signatures the same binding effect as wet signatures.
The Court in Ni found that the UETA did not supplant a more specific provision of the state Elections Code that does not provide for e-signatures. The Court also held that the state statutory requirement of a circulator to witness the signature of the registered voter negated the validity of e-signatures obtained on the internet and not through circulators. The Court further pointed out that a law to permit e-signatures to be used on electoral documents was passed by the state Legislature in 1997-98 only to be vetoed by then Governor Pete Wilson. Perhaps it will be technically possible in the future to satisfy the need for a “circulator” of petitions collecting signatures. Since the Ni decision is hostile to the very idea of sanctioning judicially the collection of signatures on the internet, it seems doubtful that a technology change rather than a law change would change the result in Ni. A non-profit, Electronic Signature Records Association and a for-profit technology vendor, Verafirma, are active in this field.
So Zero Waste advocates frustrated with the mills of the Legislature grinding slowly (if ever they grind at all)[1] could focus on legalizing the use of e-signatures to place statewide initiatives. The Legislature could again be convinced to pass such a law with the idea that Governor Brown would not veto it. The issue of permitting e-signatures itself could be made the subject of a statewide initiative. These pathways would require massive energy and time.
Which leads to the question- would this even be a good idea? Making the process to pass new laws easier for positions that one likes also makes it easier for positions one does not like. Look how many votes our current President received. Would letting this genie out of the bottle make for not a citizen government but for a CocaCola Government or a Waste Management government?
The political commentator, Kathleen Moore, says that “Our technology is moving faster than our morality”
I solicit your views.
[1] Henry Wadsworth Longfellow