JURIST Guest Columnist Mark Brown, holder of the Newton D. Baker/Baker and Hostetler Chair at Capital University School of Law, says that more states should follow Utah’s lead in allowing electronic signatures to be used when petitioning to include candidates on election ballots…

The Utah Supreme Court ruled earlier this summer (Anderson v. Bell [PDF], No. 20100237 (June 22, 2010)), that the Uniform Electronic Transactions Act (UETA), a law enacted by forty-seven states, applies to elections. Utah thus became the first state to specifically recognize that candidates can gather “signatures” from voters electronically.

Like Utah, many states condition ballot access on candidates collecting voters’ signatures. Numbers vary, but these signature collection requirements are generally arduous and beyond the means of most citizens.

Of course, that is the whole point. Incumbents write ballot access requirements to protect their jobs. They want to make it as difficult as constitutionally possible for challengers to qualify. Forcing circulators to stand in the snow and rain to manually gather thousands of signatures is a pretty good deterrent. On top of that, election officials commonly disqualify scores of illegible, hand-written signatures.

The UETA solves these problems. In place of traditional hand-written signatures, the UETA allows consumers to create accounts using unique personal information. This bundle of information – for example, a credit card number and mailing address – qualifies as an acceptable, enforceable “signature” under the UETA. Consequently, people can now pay bills, register cars, and pay taxes without ever putting pen to paper.

Application of the UETA to ballot access makes perfect sense. Electronic signatures are gathered on candidates’ web pages. Supporters enter unique identifying information, including their names and addresses. In the Utah case, the candidate also required the last four numbers from supporters’ driver licenses. This unique information, all electronically stored, acts as a signature. So long as the “security procedure” requirements of the UETA are satisfied – something businesses do every day – one can be confident that signatures are genuine and unique. All elections officials need to do is certify that signers are registered.

But won’t electronic signatures facilitate fraud? Supporters, after all, could simply open multiple accounts and “sign” repeatedly. The Utah Supreme Court noted that the same risk exists with hand-written signatures. People can always sign false names and addresses. If anything, electronic signatures minimize this risk because, as pointed out by the Utah Supreme Court, “an electronic signature incorporates readily verifiable personal, but not-public, information.”

The Utah Supreme Court’s logic makes sense. The drafters of the UETA recognized that there are always risks. Still, they felt that the benefits of electronic signatures outweighed them. The UETA thus broadly replaces all laws requiring hand-written signatures: “If a law requires a record to be in writing, an electronic record satisfies the law.” It makes no exception for transactions with government and no exception for ballot access.

There is no good reason to not follow Utah’s lead. Electronic signatures naturally guard against fraud, encourage communication, are readily verifiable, and leave an indelible record. Nothing is served by rejecting them – other than making ballot access more difficult.

Some states, Ohio for example, condition ballot access on circulators “witnessing” signatures. These circulators, moreover, commonly must be state residents who are registered to vote. Can the UETA be used under these circumstances?

The simple answer is yes. The US Supreme Court has thrown out the requirement that circulators must be registered to vote. Lower courts generally agree that states cannot require that circulators be local residents. Both requirements violate the First Amendment. The end result is that any adult can circulate petitions.

As for “witnessing” signatures, the UETA specifically overrides notarization, verification and acknowledgement requirements. Notaries are nothing more than bonded witnesses. If the UETA dispenses with their services, it should also dispense with any requirement that circulators personally “witness” signatures.

Must states accept electronic signatures for ballot access? They are certainly not constitutionally compelled to accept them. However, as made clear by the Utah Supreme Court, there is no good reason not to. Nothing inherent in the ballot access process or the UETA counsels against their use. Common sense – tried and proved in the commercial marketplace – makes it clear that electronic signatures work.

What about local referenda and initiatives? Many states allow citizens to collect signatures in order to place issues on ballots. Can sponsors of referenda solicit electronic signatures, too? Although the Utah Supreme Court did not address this problem, the same logic would seem to apply.

State elections officials would do voters across the country a huge favor by following Utah’s lead. Electronic signatures should be accepted when submitted by candidates whose signature-collection procedures comply with the UETA.

Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School.

Suggested citation: Mark Brown, Electronic Signatures: Ballot Access Meets the Internet, JURIST – Forum, Aug. 20, 2010, http://jurist.org/forum/2010/08/electronic-signatures-ballot-access-meets-the-internet.php.