Chief Deputy County Counsel Explains Insufficiency of Verafirma’s Electronically-Gathered Signature of Initiative Petition

Brenda Carlson, Chief Deputy County Counsel for San Mateo County, California, spoke this afternoon with Etopia News to explain the reasoning involved in Judge George A. Miram’s April 5, 2010, decision denying Michael Ni’s petition to require San Mateo County Chief Elections Official Warren Slocum to accept as valid his digitally-signed initiative petition asking that the Tax Cannabis 2010 Initiative be placed on the California ballot. That initiative has qualified for the state ballot with other, traditionally-sourced signatures.

Steve Churchwell, of DLA Piper in Sacramento, attorney for plaintiff Michael Ni, co-founder of San Jose-based Verafirma, which makes the technology he used to allegedly sign the “petition,” (quotation marks are the judge’s) had argued in his brief to the court that using the Verafirma technology was a valid means by which a registered voter could “affix” his or her signature to an initiative petition. Election Code Sections 100 and 9020 require that a petition signer “shall personally affix” his or her signature to a petition. San Mateo County counsel had argued that Mr. Ni had NOT personally “affixed” his signature to a valid petition.

Ms. Carlson said that the court was “not persuaded” that Mr. Ni had in fact affixed his signature to the petition. In fact, she said, the judge had ruled that what had been submitted to the elections office was “not even a petition,” but only an “image” of one. She said that what had been submitted was “not designed to comply” with the relevant statute and was no more valid than a rubber stamped version of a signature. She also pointed out that even on the image of the petition, the digitally-generated signature had been used twice (once for the signer as signer, once for the signer as circulator) and that the requirement that the signer’s address also be personally affixed had not been met because it appeared to have been typed in.

Judge Miram’s decision did not directly address the question of “affixing” the signature. He denied plaintiff’s request to order Mr. Slocum to accept the signature on the petition on the grounds that what was submitted was invalid because it did not contain a required one-inch margin on each page and because there was no way of validating the legitimacy of the process used to sign it without considering “extrinsic” evidence, something that the county election officials are explicitly prohibited from doing.

Ms. Carlson pointed out that the Elections Code had been updated in 2007, when the Legislature could have included digital signatures as a valid way of signing official petitions, but did not. She also referenced former Governor Pete Wilson’s veto message rejecting a 1997 bill calling for a task force to study Internet voting and the electronic signing of petitions (written by this reporter in an earlier incarnation) as evidence that the digital signing of petitions was not allowed under state law.

The fact that the state’s Government Code allows for the use of digital signatures in certain circumstances does not, she said, mean that it is a valid means of signing initiative petitions. Also, she pointed out, one condition necessary for the use of digital signatures under the terms of the Government Code is that it be agreed to by both parties to the transaction in question. Clearly, the Chief Elections Official of San Mateo County had not agreed to the use of an electronic signature in this case.

Ms. Carlson told Etopia News that, as of April 28th, her office had “not received any notice of appeal” of Ni v. Slocum.