Here's an interesting court of appeal decision about the intersection of technology and direct democracy from the epicenter of citizen lawmaking, California.
In Ni v. Slocum, No. A128721 (June 30, 2011), the court held that a voter using his smartphone to put his "electronic signature" on a petition does not qualify as "personally affixing" his signature to an initiative petition as required by California statute. The initiative in this case was to legalize marijuana.
Examining the language of the statute, the court concluded that "personal" means by the voter's own hand and that both sides agreed that an e-signature qualifies, but that "affix" is subject to several possible meanings. Thus, because the statutory term is subject to multiple interpretations, the court looked at the legislature's intent, noting that when it first adopted the "affix" requirement it obviously did not anticipate signing a petition by smartphone: "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. Hewlitt and Packard." Slip op. at 13. [Barista's query: how about an autopen? They've been around a while.]
However, just because the legislature has not considered something does not mean it will not fit within the statute, the court held. But what led it to rejecting e-signatures was the statutory requirement of a "circulator," the person who circulates the petition and who certifies that he or she witnessed the signing and believes it to be genuine. The court held that the circulator is a "partial guarantor that the signatures were not the result of fraud," and that "[u]se of an electronic signature system bypasses this function of the circulator." Slip op. at 16. The court concluded that even if there is an equivalent security in an e-signature, it is up to the legislature to change the law.
Overall, an interesting decision worth reviewing for any of us who do this kind of work. And it is certainly not the last word on the issue.
Ni v. Slocum, No. A128721 (Cal Ct App 6/30/2011)
