New, simpler attack on electoral electronic signatures gains momentum in Utah; Utah ACLU and e-sig executive fight back

In the 1981 film Raiders of the Los Ark, hero Indiana Jones resolves a complex situation as the potential victim of a whip-wielding villain by the simple expedient of pulling out a gun and simply shooting him. Opponents of the use of electronic signatures for electoral purposes in the State of Utah have taken a page from Indy’s playbook with a simple tactic designed to overcome the complex, and increasingly doubtful, fate of a bill designed for this purpose by supporting another bill that directly prohibits the use of electronic signatures for any electoral function in the state.

As recently reported by Etopia News, Utah’s S.B. 55, which would require each state agency in Utah to perform a formal rule-setting procedure before it could accept electronic signatures, is now at least temporarily languishing in the State Senate Rules Committee, where it landed after spending an extended period on hold, as a “circled” bill on the Senate’s Second Reading Calendar. S.B. 55 will die if it’s not reported out of the Rules Committee in the next two days, the last of the current legislative session, which ends on March 10th.

Officials in the office of the Utah Lieutenant Governor, Greg Bell, the state’s Chief Elections Officer, have indicated that, under the complicated terms of S.B. 55, they could and would refuse to accept electronic signatures on ballot access petitions, let alone official petitions designed to place ballot propositions, such as initiatives or referenda, before the state’s voters for their approval or rejection.

Another bill heard from

But opponents of using electronic signatures in Utah for electoral purposes no longer need to depend on the passage of S.B. 55 to achieve their goal. Another bill, S.B. 165 (second substitute), which directly prohibits the use of electronic signatures to qualify candidates, initiatives, or referenda for the ballot or to register a new political party yesterday (March 7th) passed its second reading in the State Senate on a vote of 24-4-1 (in favor-opposed-present) and today passed its third reading on an even stronger vote of 26-1-2.

It’s been expeditiously sent to the Utah House of Representatives’ Rule Committee, from which it now has two days to emerge and go through the House before the Legislature adjourns for the year. Managing the passage in the House of S.B. 165 will be Utah State Representative Brad Daw, who had a similar role in the shepherding of S.B. 55.

Here’s the plain language of S.B. 165, which avoids the complexity and circumlocutions of S.B. 55, and directly rules out the use of online signatures for electoral purposes in Utah:

20A-1-306. Electronic signatures.

Notwithstanding Title 46, Chapter 4, Uniform Electronic Transactions Act, and Subsections 68-3-12 (1)(e) and 68-3-12.5 (24) and (33), an electronic signature may not be used to sign a petition to:

(1) qualify a ballot proposition for the ballot under Chapter 7, Issues Submitted to the Voters;

(2) organize and register a political party under Chapter 8, Political Party Formation and Procedures; or

(3) qualify a candidate for the ballot under Chapter 9, Candidate Qualifications and Nominating Procedures

The ACLU counter-attacks

The Utah ACLU, which argued successfully for plaintiff Farley Anderson in Anderson v. Bell, the case in the Utah Supreme Court that allowed independent gubernatorial candidates to use electronic signatures to gain ballot access and seemed to create a precedent for allowing their use for ballot propositions, reacted strongly and negatively to the sudden emergence of S.B. 165.

Darcy Goddard, Legal Director for the Utah ACLU, today issued this statement expressing the group’s views about the legality and appropriateness of S.B. 165:

“By explicitly singling out and treating differently e-signatures submitted for purposes of ballot access and citizens' petitions, the language at lines 378-386 of SB165 appears to violate, among other laws, the Equal Protection Clause of the Fourteenth Amendment, the First Amendment rights of political association and freedom of expression, and the state and federal rights of citizens to petition their government.

“Although we are aware that the case law dealing with ballot access issues has at times been inconsistent, we think laws that would purport to permit e-signatures in all respects other than in the context of nominating petitions and citizens' petitions would impermissibly burden and infringe on the rights of candidates, voters, and other Utah citizens without even an arguably compelling (or lesser) state interest as would justify that burden.

"Indeed, in the context of SB55, Senator Urquhart and the Lieutenant Governor's office made it abundantly clear in public statements that the intent of the bill was not, for example, to protect against potential fraud--an argument that would fail in any event given the additional protections in place to confirm the validity of e-signatures as opposed to paper signatures--but was instead to ‘correct’ the supposed ‘ills’ created by the Utah Supreme Court's decision in Anderson v. Bell.

"Presumably, that is what also motivates SB165 (second substitute); we note, for example, that the substitute language came late in the session, only after SB55 was roundly criticized for its potentially devastating impact on e-commerce in the State of Utah, and there seems no other reasonable explanation for inserting this language into the more general election code bill at that time.

“Especially given the Supreme Court's reliance in Anderson on well-established common law in rejecting the Lieutenant Governor's attempt to overturn the decisions of various county clerks throughout the State, we are hard-pressed to understand what ‘ills’ these bills would purport to ‘correct.’ Regardless, any attempt to ‘correct’ those claimed ‘ills’ with a law that would substantially burden the constitutional rights of Utah voters and candidates would likely be subject to a well-founded legal challenge that the State would do well to avoid.

“The provisions in SB165 (second substitute) that would seek to ban the acceptance of e-signatures for ballot access and citizens petitions would impermissibly burden the state and federal constitutional rights of all Utahns, and should be deleted from the proposed bill.”

E-sig executive voices concern

Ken Moyle, Chief Legal Officer at leading electronic signature company DocuSign, joined the chorus of opposition to S.B. 165 with a statement issued late Tuesday evening, saying:

"Should the House pass SB165, citizens of Utah would be deprived of the benefit of the Supreme Court’s ruling in Anderson v. Bell. The Court interpreted Utah’s 10-year old Uniform Electronic Transactions Act (UETA) to require state agencies to demonstrate the need for paper on an exception basis, rather than allowing them to hold up e-commerce until they get around to adopting rules.

"It is clear that a reversal of that decision was the whole intent of the bill. The legislative intent of the UETA was to do just the opposite of what this bill says; the UETA (and subsequently ESIGN) were adopted as a way to jumpstart electronic transactions by redefining what a 'writing' or a 'signature' is WITHOUT having to rewrite the laws or promulgate new rules.

"Is this really the direction we want to go? Back to 1999?"