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Wednesday, June 23, 2010

Utah E-Signatures Ruling Could Have Broad Reach

by Thomas O'Toole

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Yesterday the Utah Supreme Court ruled that electronic signatures -- submitted through a website -- are valid signatures under the state's election code. The court's ruling creates a Pandora's box of election law issues for state officials who had -- until yesterday -- not given any serious thought to the prospect that candidates for political office in Utah have a right to use electronic media to collect and submit nominations for political office.

Because the Uniform Electronic Transactions Act (UETA) played a large role in the court's decision, state officials across the country should read the opinion carefully. So far, 47 states have adopted UETA, a uniform law declaring, among other things, that an electronic signature "may not be denied legal effect or enforceability solely because it is in electronic form." In the few states where UETA has not been adopted, the rules on electronic signatures are provided by the substantially similar federal electronic signatures law, the Electronic Signatures in Global and National Commerce Act.

There are exceptions to UETA's sweeping validation of electronic signatures, but election laws are not one of them.

Utah law requires that candidates for statewide political office who are not affiliated with a political party submit a nominating petition signed by at least 1,000 registered voters in support of their candidacy.

In this case, the candidate, Farley Anderson, a candidate for governor, submitted the signatures of 1,055 registered voters. Some were ink-on-paper but many were acquired through a website, at https://www.i-sign.us. Utah election officials rejected Anderson's petition, asserting that he lacked the requisite 1,000 signatures because, in their view, electronic signatures are not valid signatures under the state's election code.

Anderson petitioned the state supreme court for an order compelling the state's election officials to place his name on the ballot. The court granted Anderson's petition.

The court's reasoning, in a nutshell, was that the word "signature," which is defined by state law as "a name, mark, or sign written with the intent to authenticate any instrument or writing," is broad enough to encompass electronic signatures. The court said that the legislature intended that the emphasis should be on the intent of the signer, not the medium or form of the signature.

Further evidence of legislative intent, the court said, is Utah's 2005 adoption of the Uniform Electronic Transactions Act (UETA). Under UETA, the intent of the signer is also a predominant consideration. UETA defines an "electronic signature" as "an electronic sound, symbol or process ... executed or adopted by a person with the intent to sign the record." Utah Code Section 46-4-102(8).

"We hold that electronic signatures may satisfy the Election Code's requirements ... regarding unaffiliated candidates wishing to run for statewide office," the court said. "[W]e conclude that the Lt. Governor exceeded the bounds of his discretion when he excised the electronic signatures attached to Mr. Anderson's certificate of nomination."

Now that nominating petitions such as Anderson's can be created and signed electronically, via a website form, Utah elections officials will need to embrace this reality and create an orderly and fair process to accommodate them. Anderson's courtroom victory has shown other candidates that online nominations are feasible, and lawful, so others are sure to follow.

Anderson, who was represented by the American Civil Liberties Union, also raised several constitutional arguments in support of his bid to get on the ballot. However, because the court decided the case on statutory grounds, his constitutional claims were not decided.

The case is Anderson v. Bell, No. 20100237 (Utah June 22, 2010).
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